SAN FRANCISCO (CN) — Two former San Francisco police officers convicted of a raft of criminal offenses in an elaborate scheme to steal property from citizens told a Ninth Circuit panel Monday that the charges were trumped up and improper evidence was used during the trial.
The appeal comes during a greater department-wide crisis for the SFPD, which struggles to parry accusations that it is permeated by a sense of lawlessness, racism and careless use of excessive force.
As a Ninth Circuit panel took up the appeal of former SFPD officers Ian Furminger and Edmond Robles in downtown San Francisco on Monday, more than 100 protesters gathered about five blocks away at City Hall to demand the resignation Police Chief Greg Suhr.
The public furor over the SFPD in many ways originated with the Furminger and Robles case, when investigators found that the officers had orchestrated a scheme to target individuals and steal their property by doctoring police reports. But the investigation also uncovered a virulent strain of interdepartmental racism that has repeatedly surfaced since.
A jury convicted Furminger and Robles in December 2014 of conspiring to steal seized property by devising a scheme to defraud and obtain money and property through wire fraud. The jury found that the pair targeted drug dealers, seizing property and cash and omitting the items from police reports — and instead divided up the items between themselves.
On Monday, the officers’ attorney William Genego argued the convictions for wire fraud should be overturned because the scheme did not use the wire to further the crime.
“In terms of wire fraud, it’s a matter of precedent that if it’s an omissions case, the misrepresentation has to be made to the person from whom the property is being taken,” Genego said. “In the present case, the omissions occurred in the police reports, which were given to the police department and not to the victims.”
Genego said it’s a simple theft case and the wire fraud convictions against Furminger and Robles should be vacated.
But U.S. Attorney Barbara Valliere said the wire fraud counts relate to the overall scheme devised by the officers to not merely opportunistically steal property when the chance arose, but to systematically target people who may have had cash, drugs or property that was easy to take during the evidence admissions process.
“The scheme includes the entire process, targeting individuals, gaining access to the homes under the color of law, taking the money, splitting the money and then submitting the false reports,” Valliere said.
The officers also used wire communications to operate separately from honest officers in the department, Valliere said.
Circuit Judge Morgan Christen did not seem particularly persuaded by the government’s position, repeatedly asking which specific conduct constituted wire fraud.
However, Christen appeared even less convinced by an argument put forward by an Furminger’s Mark Goldrosen, who said the former sergeant was unfairly harmed during his trial when the judge allowed the jury to see text messages that showed him behaving callously toward the mother of his child in a dispute over child support.
“The messages were not simply ones that concerned a financial obligation, but they portrayed him as having a bad character,” Goldrosen said, adding that because the overall evidence against Furminger wasn’t strong allowing the jury to see the text messages was particularly harmful.
Valliere said prosecutors made no mention of the text messages during closing arguments, showing they were not central to the case. In fact, Valliere said the evidence was not a factor in that they were used to attempt to prove Furminger committed extortion — a charge of which he was eventually exonerated.
Christen seemed inclined to agree with the government in this instance.
“You think the evidence against your client was weak?” Christen said. “It does not strike me as weak. Also, I hardly think a one-sided conversation about child support is likely to shock a jury.”
The three-judge panel did not indicate how or when it intends to rule on the officers’ appeal.
But its lengthy discussion over text messages was ironic given how largely they factored in a string of incidents that led to Monday’s protest at City Hall expressing outrage over the SFPD.
During the federal probe into criminal activity by Furminger and Robles, investigators found at least four SFPD officers exchanged racist and homophobic text messages that San Francisco District Attorney George Gascon called “very, very derogatory.”
Chief Suhr told ABC-7 News the messages were of a “reprehensible, racist, homophobic nature.”
In March 2015, the police chief sought to fire eight officers and discipline four others implicated in the racist texting scandal that came out of the Furminger investigation. But this past December, a state court judge ruled that officers who sent racist texts in 2011 and 2012 could not be fired because the department waited too long to seek disciplinary action.
California’s Peace Officer Bill of Rights imposes a one-year statute of limitations on punishing officers for misconduct. Seven of the officers continue to receive paychecks from the city while on administrative leave.
Meanwhile, another batch of racist texts sent by SFPD officers was unearthed during a different criminal investigation into misconduct by Officer Jason Lai, who was suspected of sexual assault. Lai was not charged with sexual assault but was indicted on two counts of unlawful possession of criminal records and four counts of abusing his position to look up confidential DMV records.
Following the discovery of the new batch of racist texts, San Francisco Public Defender Jeff Adachi sent a letter to California Attorney General Kamala Harris on April 4 requesting a full-scale civil rights investigation of the department.
Adachi said the racist texts are emblematic of a larger pattern that has allowed racism to fester within the department.
“An investigation would help settle the pressing question of whether the racism evidenced in these incidents is endemic of a culture within the department that allows these types of incidents to occur,” Adachi wrote in the April 4 letter.
Adachi cited a 2015 study that found African-Americans — only 6 percent of the city’s population — account for 40 percent of arrests and are 10 times more likely to be convicted of a crime in San Francisco.
The department’s woes were even further compounded as many members of the community have rallied around what many believe was excessive force by four SFPD officers who killed 28-year-old Latino student Alex Nieto on March 21, 2014.
The officers shot Nieto 59 times. They were all cleared of any wrongdoing by Gascon, who said the officers legitimately feared for their lives, but members of the community continue to protest and demand justice.
Monday’s protest was organized by Nieto’s parents, Refugio and Elvira, according to the San Francisco Chronicle, and featured many University of California-San Francisco who called the shooting of minority people by police a public health crisis.
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