Defense lawyers accuse feds of outrageous conduct in mass phone-bugging sting

SAN DIEGO (CN) — Did the U.S. government outsmart a ring of international drug smugglers by creating a Trojan Horse of a phone company to spy on them? Or did the government cross a line, encouraging criminal conduct itself?

That strange question is now at the heart of an equally strange international RICO case — one in which at least 17 people have been charged with racketeering conspiracy for distributing the very phones that the feds themselves bugged.

On Thursday, Patrick Griffin, attorney for defendant Alexander Dmitrienko, told a federal court in San Diego that his client’s indictment should be dismissed, citing what he called “outrageous government conduct.”

“This R.I.C.O. indictment is the enterprise,” Griffin said. “Anom the company was the criminal enterprise.”

The government, Griffin noted, hasn’t charged Dmitrienko with any drug or smuggling crimes. Rather, he said Dmitrienko was essentially charged with being a sales representative to the criminal underworld for the government’s bugged phones.

Those phones were marketed under the name Anom. They were advertised as being encrypted, allowing criminals around the world to more discreetly coordinate a panoply of illegal acts, including drug smuggling, money laundering and acts of violence.

In fact, Anom was bugged by the FBI. Every communication was intercepted and copied. In a sting dubbed Operation Trojan Shield, the FBI — working with law-enforcement agencies in the United States across the world — in 2021 arrested nearly 800 people based on evidence gathered from those communications.

The 17 defendants indicted for racketeering conspiracy in San Diego are all foreign nationals. According to the indictment, Dmitrienko is a citizen of Finland who resided in Spain.

The indictment itself is “very vague. It’s all very ambiguous,” said Megan Foster, an attorney for another defendant in the case, Aurangzeb Ayub.

There’s nothing in the indictment tying Ayub, a citizen of both the U.K. and the Netherlands, to a specific criminal act, Foster said. Nor is it clear what ties his racketeering charge to Southern California, she argued.

The government’s claim is akin to “a snake eating its own tail,” she added — leaving Ayub unable to properly defend himself in court.

Like Dmitrienko, Ayub has moved to dismiss the indictment against him, citing improper venue.

But government lawyers tell a very different story. Representing the U.S. Department of Justice, attorney Peter Horn called Griffin’s arguments “fundamentally, factually, legally wrong.”

Responding to Dmitrienko’s motion to dismiss, the government argued that while it did create a phone company called Anom, it played no role in the vast criminal conspiracy for which Anom was ultimately used. Nor did it play any role in communications sent on Anom devices, in which accused criminals discussed crimes.

In the case of Ayub, the indictment does allege how he was involved in the Anom conspiracy, the feds argued in their response. And they say aspects of his accused crimes did indeed have a nexus in Southern California, because Anom devices were used in the region and were sold to Colombian cartels operating in the United States.

At the beginning of the hearing on Thursday, U.S. District Judge Janis Sammartino, a George W. Bush appointee, read a tentative ruling denying the Ayub and Dmitrienko motions. In that ruling, she found the “government did not cross the line from acceptable to outrageous conduct.”

After listening attentively to the defense attorneys’ arguments, though, Sammartino said she wanted to take another look at the matter. She set another hearing for next month.