Bank robbery suspect wants NSA phone records for his defense
NSA director says agency is "trying to protect Americans"
By Paula McMahon, Sun Sentinel 7:07 pm, June 12, 2013
One South Florida man accused in a series of bank robbery attempts is hoping the recent revelation that the federal government is secretly keeping millions of U.S. phone records could help his defense.
Terrance Brown, 40, is one of five men on trial in federal court in Fort Lauderdale on charges they conspired to hold up armored trucks making cash deliveries to banks in Miramar and Lighthouse Point in 2010. They have all pleaded not guilty.
Another man, alleged co-conspirator Nathaniel Moss, 34, is serving life in federal prison after admitting he shot and killed Brink's truck guard Alejandro Nodarse Arencibia, 48, during the final heist on Oct. 1, 2010, outside the Bank of America branch at 7950 Miramar Parkway.
The FBI and federal prosecutors are using cellphone records in court to try to prove that the five accused men were all nearby when the robbery attempts and planning occurred, as Moss, who is cooperating with the U.S. Attorney's Office, testified.
The prosecution had told defense attorneys that they were unable to obtain Brown's cellphone records from the period before September 2010 because his carrier, MetroPCS, had not held on to them.
Not so fast, Brown's attorney Marshall Dore Louis argued in court documents filed in Fort Lauderdale days after the National Security Agency surveillance program was revealed last week.
Edward Snowden, a former employee at an NSA contractor, leaked classified information about the program to a newspaper and alleged it may be an illegal government invasion of privacy.
Louis argued in court Wednesday that the government should be forced to turn over phone location records for two cellphones Brown may have used because it could prove he was not present for one of the attempted bank robberies, on July 26 on Federal Highway in Lighthouse Point.
"The president of the United States has recognized this program has been ongoing since 2006 … to gather the phone numbers [and related information] of everybody including my client in 2010," Louis said.
U.S. District Judge Robin Rosenbaum agreed to give prosecutors an extra week or two to respond fully after they said they needed more time.
"There are security procedures that must be followed," Assistant U.S. Attorney Michael Walleisa said of the special protocols the Department of Justice follows when dealing with information, usually used to identify possible terrorist activity, that may have been secretly obtained under the Foreign Intelligence Surveillance Act.
Prosecutor Michael Gilfarb told the judge that even if the information is available, it may be irrelevant depending on whether Brown carried a phone.
Brown's wife, Vesta Murat Brown, who testified for the prosecution Wednesday morning, told jurors that her husband didn't have a cellphone at the time but sometimes borrowed phones from her, other family members or friends.
Local lawyers said they anticipate there will be many more requests for this kind of information now that defense attorneys know the information may have been preserved.
"If the government is spying on our phone calls, it can't then claim in the same breath that it won't provide those calls when it helps the defense. What's good for the goose, is good for the gander," said David Oscar Markus, a defense lawyer who blogs about the federal justice system in South Florida and first wrote about the unusual request.
pmcmahon@tribune.com, 954-356-4533 or Twitter @SentinelPaula
So does this mean that all Verizon customers can cancel their cell phone contracts now....without penalty???
When the INSANE are running the ASYLUM In individuals, insanity is rare; but in groups, parties, nations and epochs, it is the rule. -- Friedrich Nietzsche
“How fortunate for those in power that people never think.” Adolph Hitler
When the INSANE are running the ASYLUM In individuals, insanity is rare; but in groups, parties, nations and epochs, it is the rule. -- Friedrich Nietzsche
“How fortunate for those in power that people never think.” Adolph Hitler
Judge demands NSA releases dragnet surveillance records for criminal case Get short URL Published time: June 18, 2013 20:56 AFP Photo / Paul J. Richards
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Tags Conflict, Court, Crime, Hacking, USA
In wake of the NSA surveillance scandal, a Florida judge has demanded that the federal agency hand over the phone records of a man charged with attempted robbery, to help solve a case that culminated in a murder.
The motion provides a glimpse into how the National Security Agency’s surveillance records could be obtained in the future, now that whistleblowers have revealed details of the controversial spy program.
Terrance Brown, a 40-year-old South Florida man standing trial in Fort Lauderdale, is accused of masterminding a robbery that resulted in the death of an armored car messenger in October 2010. Attorneys in the case claim that they are missing Brown’s telephone records and that his service provider, MetroPCS, no longer has them.
The defendant has pleaded not guilty, but prosecutors have relied on the cell phone records of the robbery’s co-conspirators to try to prove Brown’s involvement. Defense attorneys believe that the missing phone records would prove that Brown was not involved in the July 2010 robbery attempt.
The revelation of the NSA’s surveillance program has generated hope that Brown’s missing phone records could be obtained, and possibly prove his alleged innocence.
"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 of 2010," attorney Marshall Dore Louis wrote in the motion to compel production of records.
The attorney argued that the surveillance records are highly important in the case, and that the court is not seeking them merely to gather information about Brown.
"The records are material and favorable to Mr. Brown's defense; they are evidentiary and relevant to the issues in trial; they are not otherwise procurable by exercise of due diligence; the application is made in good faith and is not intended as a general fishing expedition; and, the records are necessary for Mr. Brown to meet the government's evidence in this matter," Louis wrote in the motion.
Louis asked the US District Court in Fort Lauderdale to subpoena the NSA for the information, even if the agency determines that it cannot produce the records. He gave the NSA a short deadline to come up with the information, claiming that it is vital for the trial. In the motion, the attorney notes that the NSA program has been ongoing since 2006, indicating that the government has collecting Brown’s cell phone data from 2010.
"The Court regrets the short deadline for compliance but notes that the evidence that defendant Brown seeks pertains to a trial that has been underway since May 31, 2013, and any order requiring the production of any materials sought would become meaningless if such items were not produced in sufficient time for the defense to use them in its case," the judge wrote.
Although the surveillance records have the potential to benefit the defendant, the court’s request demonstrates that the NSA’s surveillance could quickly leave the hands of the government. If the agency provides Brown’s surveillance data, it may set a precedent to hand over private information, even in cases where there is no evidence of a terrorist threat.
Local lawyers told the Sun Sentinel that more of these requests will likely arise, now that the NSA’s secret database has been revealed.
“If the government is spying on our phone calls, it can’t then claim in the same breath that it won’t provide those calls when it helps the defense. What’s food for the goose is good for the gander,” said David Oscar Markus, a South Florida defense lawyer.
Jonathan Turley, a George Washington University law professor, told the Daily Mail that he expects numerous lawsuits to challenge the government’s phone records collection program over the next several months, in some cases requesting access to the information.
“It was a game-changer when the government acknowledged the program, and you’re going to see additional lawsuits in the next few weeks and months,” he said.
It is unclear if the NSA would provide its surveillance information to the individual it was gathered from, or others who request it. The NSA’s response to the Florida court’s request could set a precedent on how it shares the private information it gathered.
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