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.
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