Defense lawyers insist on clients’ right to use NSA records

On a stretch of North Federal Highway in Lighthouse Point sits a branch of Bank of America.

The location, at the corner of Northeast 29th Street near Pompano Beach, is at the heart of a landmark motion filed recently in Fort Lauderdale federal court that sought phone records from the National Security Agency (NSA) in a South Florida criminal case.

In the fallout over NSA leaker Edward Snowden’s revelations, one of the unintended consequences is a sudden interest on the part of many defense lawyers across the nation to seek agency records that could help their clients in ordinary criminal cases.

U.S. officials have acknowledged in the wake of Snowden’s leaks that for years the NSA has collected and stored vast amounts of telephone and email records as part of its strategy to detect potential terrorist attacks against the United States.

One of the first phone-records motions in a criminal case came from Marshall Dore Louis, a Miami defense attorney who represents Terrance Brown, implicated in a federal bank truck robbery conspiracy case. Dore may have started a trend.

After Dore filed his motion in June, he received calls and email messages from dozens of attorneys across the country interested in filing similar motions in their cases.

In addition, many more attorneys in drug-trafficking cases nationwide are said to be preparing motions after Reuters revealed on Aug. 5 that the NSA is a partner in a special Drug Enforcement Administration (DEA) unit that supplies tips to local law-enforcement authorities. Those tips come from a massive phone-records database that the DEA’s Special Operations Division (SOD) taps, Reuters said.

The expected onslaught of demands for NSA records from defense attorneys is an ironic twist for a once-secretive agency whose acronym was often jokingly said to stand for No Such Agency.

Brown was recently convicted of only one of the nine counts in a case stemming from a deadly Oct. 1, 2010, robbery that unfolded when a Brinks truck was delivering $397,500 to a Bank of America branch in Miramar. The government has yet to decide whether it will retry Brown on the eight counts upon which the jury could not reach a verdict.

Brinks worker Alejandro Nodarse Arencibia of Hialeah, 48, was killed when one of the robbers — not Brown — shot him in the head as he walked to the bank with a bag containing the money.

While that robbery has been the focus of media attention since Dore filed his motion in June, his demand for NSA records actually focused on an earlier episode — July 26, 2010 — when federal prosecutors allege that his client was at or near the Bank of America branch at Lighthouse Point waiting for a money truck to arrive.

No robbery occurred because the truck never showed up, but Brown was still linked to the conspiracy because prosecutors insisted he was in the area. As evidence, they cited phone calls to him from alleged accomplices but did not produce any phone records showing he was positively there.

“The government was asserting that my client was in Lighthouse Point, Fla., attempting to rob a bank in July, but they did not have location data for the phone that they alleged was his,” Dore said in an interview Wednesday. “So, they did have it for people that they alleged were in the conspiracy, but not my client.”

After reading an article in The Guardian newspaper in early June about Snowden’s leaks about NSA phone- and email-collection programs, Dore hit upon the idea that the agency likely possessed cellphone location data for his client.

According to the Guardian and other media outlets, information from Snowden indicates that the NSA has become a sort of vast repository for intercepted communications — including phone-location records.

On June 9, Dore filed his motion in the hopes of finding evidence that would show his client was not in the vicinity of the bank at Lighthouse Point, as the government had alleged.

“The government must be ordered to turn over the records for the two telephones that it attributes to Mr. Brown for the dates which are relevant to this case — the month of July 2010,” Dore’s motion said. “The records for the two telephone numbers are in the government’s possession. The NSA operates under the authority of the United States Department of Defense, an arm of the executive branch of government.”

A day after Dore filed his motion, U.S. District Court Judge Robin Rosenbaum ordered the federal government to respond. On June 19, prosecutors filed a motion denying that the federal government had the location data that Dore sought.

Dore said in an interview on Wednesday that he has since withdrawn the motion because he is confident that Michael Mullaney, chief of the counterterrorism section of the Justice Department’s national security division, who represented that the records did not exist, would not make a misrepresentation to the court.

But his motion stirred the interest of other lawyers.

“I received a lot of contacts from other lawyers who wanted to get the information because, for the same reasons that it’s useful to the government, it’s useful to defense lawyers,” Dore said.

One of the lawyers who contacted Dore was John Steakley in Cobb County, Ga., where he represents a client in a double homicide case.

“I have a double homicide where witnesses called each other upon hearing gunshots,” Steakley said in an e-mail to El Nuevo Herald. “If those calls took place before my client arrived in the area [we have his records], then he couldn’t have done the shooting. I’ve tried to get the records of those phone calls, but the cell companies no longer have the records. If the NSA has been stockpiling the data, I’d like to get it.”

Steakley said on Thursday that he plans to file a motion demanding NSA phone records for those calls.

More lawyers became interested in filing motions after Reuters broke the story on the DEA’s unit to combat drug-trafficking Latin American cartels through a partnership with the NSA and other federal agencies that include the CIA, Homeland Security, the FBI and the Internal Revenue Service (IRS).

The DEA’s Special Operations Division’s practice of feeding tips on suspects to local law enforcement has drawn criticism because the initial source of the information, possibly NSA intercepts of phone data, has not been revealed when cases reach the courts.

According to Reuters, the original tip was concealed from judges, prosecutors and defense attorneys because of the classified nature of the unit. The tip generally was relayed to a state trooper who was told by investigators to search a specific vehicle in which drugs would be found.

In court, investigators would say that the case began with the vehicle search, not the SOD tip. Investigators called the procedure parallel construction.

The subterfuge has upset some legal experts who feel that court cases in which the practice was used have been compromised.

“I have never heard of it before,” Nancy Gertner, a Harvard law professor and former federal judge and defense lawyer, recently told the news show The Takeaway on National Public Radio. “I was a criminal defense lawyer for 24 years and a judge for 17, and I have never heard of this before. And yes, there were cases that began with traffic stops … I never saw anything that smacked of parallel construction.”

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