BUSINESS

The Erosion of Due Process: Exposing the FBI’s Latest Disregard for the Rule of Law

November 29, 2023

Washington,Dc,Usa,-,October,28,2014;,Brutalist,Architecture,Of — Washington DC USA - October 28 2014; Brutalist architecture of J Edgar Hoover building, home of the FBI (Shutterstock)

Once again federal prosecutors are overstepping their bounds, this time attempting to introduce dubious evidence that shouldn’t be admitted into court in a controversial case.
For background, in May 2022, the U.S. Attorney’s Office for the Eastern District of New York announced the arrest of four men for murder for hire in connection to the slaying of Xin Gu, a 31-year-old Queens resident on February 12, 2019. The government charged Qing Ming Yu (also known as “Allen Yu”), Antony Abreu (“Anthony”), You You (“Eddie”) and Zhe Zhang (“Zack”).
The government’s case against Zhe Zhang specifically is entirely dependent on tainted evidence that was obtained improperly, which should render it inadmissible in court. For that reason, it’s imperative that Zhang is given the opportunity to squash this “evidence.”

The process to contest such evidence is known as a “Franks hearing,” named after a 1978 Supreme Court case. This hearing allows the defendant to challenge the truthfulness of statements made in an affidavit supporting a search warrant, where they must prove that the false statements were included “intentionally or with reckless disregard for the truth” – which we know the government does regularly, such as when the FBI lied to obtain search warrantsto surveil members of the Trump campaign. If the affidavits are invalid, so is any supposed evidence obtained from search warrants.

And as is apparent, false statements used for one affidavit for Zhang that should’ve never been issued in the first place were then used to justify further search warrants on other properties of his. However, since they resulted from a tainted search warrant, any evidence obtained through them is also moot.

The search warrant in question is from May 3 2021, (known as the CSLI warrant – for cell site location information) which the FBI executed. Most significantly, in the FBI’s search warrant affidavit, they excluded crucial exculpatory evidence, namely that a witness named Carlos mentioned in several interviews that David Yu said he was the shooter, not Zhe Zhang.

To give the mere appearance of fairness, the government has decided to no longer seek to introduce cell site location evidence from Zhang’s phone, which they claim makes Zhang’s motion to suppress evidence moot. But that ignores the reality that the findings from the CSLI warrant were then used to justify two subsequent search warrants. In other words, they laundered

the information illegally obtained from their first warrant to then cite it as “corroborating” evidence, and “independent” evidence of probable cause to prove Zhang’s involvement in the case.
The government hasn’t indicated that it’ll withdraw its application to withdraw supposed evidence from a warrant for Zhang’s Instagram account (in March 2022), and a warrant for his premises (May 9, 2022). Zhang’s lawyers agree that the motion to suppress would be moot if this information was also excluded. If the government were to withdraw them, then argue the motion to suppress would be moot – but they have not yet.

A warrant for both Zhang’s Instagram account and personal property were derived from the CSLI warrant.

Above all else, the government’s decision to not introduce evidence directly from the CSLI warrant is proof that they know it’s inadmissible. After all, the government would never voluntarily weaken their case. Yet, the government finds themselves in a catch 22; if the CSLI warrant is inadmissible, then so are any subsequent warrants dependent on it. The government can’t escape this dilemma.

Ironically, the prosecutors themselves seem to realize how flimsy their evidence is, as in a filing introducing evidence obtained from their tainted warrant of Zhang’s Instagram account, they go out of their way to reference Rule 401, which imposes a “relatively low bar” for relevant evidence. What would the need for this be if their evidence was strong?

It is evident that the government’s evidence in Zhang’s case is tainted. As has been meticulously demonstrated, the warrant in question was tainted by procedural errors and lacked the necessary probable cause, rendering it invalid under the law. In a system predicated on the principles of justice and the protection of individual rights, it is imperative that we uphold the integrity of search warrants to prevent unwarranted infringements on personal liberties. In this case, it is abundantly clear that the government did not meet that standard of integrity.