State v. Hebeishy and Sadler , 2022 UT App 136 ( 2022 )

2022 UT App 136THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
TAMER AHMED HEBEISHY AND JARON MICHAEL SADLER,
Appellants.
Opinion
No. 20200230-CA
Filed December 8, 2022
Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 161900107
Randall W. Richards, Attorney for Appellant
Tamer Ahmed Hebeishy
Laura J. Fuller, Attorney for Appellant
Jaron Michael Sadler
Sean D. Reyes and Jeffrey D. Mann, Attorneys
for Appellee
JUSTICE JILL M. POHLMAN authored this Opinion, in which JUDGE
GREGORY K. ORME and JUSTICE DIANA HAGEN concurred. 1
POHLMAN, Justice:
¶1 Tamer Ahmed Hebeishy and Jaron Michael Sadler entered
conditional guilty pleas to various charges arising out of their
participation in an organized criminal street gang. As part of their
1. Justices Jill M. Pohlman and Diana Hagen began their work on
this case as members of the Utah Court of Appeals. They both
became members of the Utah Supreme Court thereafter and
completed their work on this case sitting by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 3-108(4).
State v. Hebeishy & Sadler
plea agreements, both defendants reserved the right to appeal the
district court’s rulings.
¶2 Now, in this consolidated appeal, Hebeishy and Sadler
(collectively, Defendants) appeal the district court’s denial of a
motion to suppress evidence obtained pursuant to a wiretap order
allowing for the interception of communications on Hebeishy’s
mobile phone. Defendants contend that the motion to suppress
should have been granted either because (1) the wiretap
application failed to meet the necessity requirement of section 77-
23a-10(1)(c) of Utah’s Interception of Communications Act or
(2) the law enforcement affidavit supporting the wiretap
application was misleading due to false statements and material
omissions.
¶3 Hebeishy also individually appeals the denial of his
motion to dismiss two of the four predicate offenses that
supported his conviction for pattern of unlawful activity. He
contends that the relevant statute of limitations, the state or
federal double jeopardy clause, or Utah’s single criminal episode
statute barred the State’s reliance on the two offenses.
¶4 We affirm.
BACKGROUND
¶5 This is a companion case to and arises out of many of the
same facts involved in State v. Sadat Hebeishy, 2022 UT App 134,
and State v. Pickett, 2022 UT App 135, both of which also issue
today. In short, 2 Hebeishy and Sadler were identified by law
enforcement as members of the Titanic Crip Society (TCS), a
criminal street gang in Weber County, Utah. As part of its
investigation of TCS, law enforcement received authorization
from the district court to conduct a wiretap of Hebeishy’s mobile
2. A more fulsome description of the relevant facts and procedural
history can be found in State v. Sadat Hebeishy, 2022 UT App 134.
20200230-CA 2 2022 UT App 136State v. Hebeishy & Sadler
phone. Based in part on evidence obtained from that wiretap, the
State charged Hebeishy with aiding and abetting graffiti, pattern
of unlawful activity, aggravated assault, obstructing justice, and
aiding or concealing a youth offender—all but one with gang
enhancements. Also based on that and other evidence, the State
charged Sadler with pattern of unlawful activity, aggravated
robbery, two counts of aggravated assault, vehicle burglary, and
assault—all with gang enhancements.
¶6 Before trial, Hebeishy filed a motion to suppress evidence
obtained from the wiretap, which Sadler joined, arguing that the
application seeking the wiretap order failed to meet the necessity
requirement of section 77-23a-10(1)(c) of Utah’s Interception of
Communications Act and that the law enforcement officer’s
(Officer) supporting affidavit was misleading due to false
statements and material omissions. After briefing and argument,
the district court denied the motion, determining that (1) the
wiretap application satisfied the statutory necessity requirement;
(2) the supporting affidavit “was not inaccurate, false, or
misleading;” and (3) even assuming the affidavit was misleading,
there had been no showing that Officer acted intentionally,
knowingly, or recklessly in making his assertions.
¶7 Hebeishy then filed a motion to dismiss two of the four
predicate offenses on which the pattern of unlawful activity
charge was based—predicate offense nine for aggravated assault
and predicate offense fourteen for assault by a prisoner. 3
Hebeishy argued that the four-year statute of limitations had
expired for both offenses before the pattern of unlawful activity
charge was filed and thus neither one could be included as a
predicate offense. Hebeishy alternatively argued that predicate
offense nine had to be dismissed because its inclusion violated the
prohibition against double jeopardy and Utah’s single criminal
episode statute. He reasoned that because he had previously been
3. The information alleged fourteen total predicate offenses
among six defendants. Four of those offenses applied to Hebeishy.
20200230-CA 3 2022 UT App 136State v. Hebeishy & Sadler
convicted for riot based on the same conduct giving rise to the
aggravated assault offense, the State could not lawfully rely on
that predicate offense to prove pattern of unlawful activity.
¶8 The district court rejected these arguments. It concluded
that the inclusion of predicate offenses nine and fourteen did not
violate the applicable statute of limitations or the double jeopardy
clause. Specifically, the court concluded that the State could base
a pattern of unlawful activity charge “on charges or events where
the Statute of Limitations would have expired.” Further, citing
Utah and federal authorities, the court expressly rejected
Hebeishy’s contention that the State’s reliance on the aggravated
assault as a predicate offense violated the double jeopardy clause.
¶9 Defendants later entered conditional guilty pleas.
Hebeishy pleaded guilty to one count of pattern of unlawful
activity, obstructing justice, and aiding or concealing a youth
offender. Sadler pleaded guilty to one count of pattern of
unlawful activity, attempted aggravated robbery, and aggravated
assault. Both Defendants reserved their rights to appeal the
district court’s rulings, and they now appeal.
ISSUES AND STANDARDS OF REVIEW
¶10 Defendants first contend that the district court erred in
denying their motion to suppress evidence obtained through the
wiretap of Hebeishy’s mobile phone. They argue that the district
court incorrectly determined that law enforcement had satisfied
the necessity requirement of Utah’s Interception of
Communications Act. They also argue that the court should have
suppressed evidence obtained through the wiretap (or at least
granted an evidentiary hearing) because the affidavit supporting
the wiretap application was misleading due to false statements
and material omissions.
¶11 Regarding Defendants’ challenge to the district court’s
necessity determination, the parties disagree over what standard
20200230-CA 4 2022 UT App 136State v. Hebeishy & Sadler
of review applies. 4 Defendants advocate for a mixed standard of
review, asserting that we should review the district court’s factual
findings for clear error and its necessity determination for
correctness. The State, in contrast, invites us to review the
necessity determination for an abuse of discretion, arguing that
we should adopt the standard applied by most federal appeals
courts in reviewing necessity determinations under the federal
wiretap statute. See United States v. Ramirez-Encarnacion, 291 F.3d
1219, 1222 n.1 (10th Cir. 2002) (collecting cases). We need not
resolve this dispute because, even reviewing the district court’s
necessity determination for correctness as urged by Defendants,
we discern no error by the district court.
¶12 Regarding Defendants’ challenge based on the alleged
misleading nature of the wiretap affidavit, the parties agree that
we review a district court’s ruling on a motion to suppress for an
alleged Fourth Amendment violation as a mixed question of law
and fact. See State v. Fuller, 2014 UT 29, ¶ 17, 332 P.3d 937.
Specifically, we review the court’s factual findings for clear error,
and we review its legal conclusions, including its application of
law to the facts of the case, for correctness. 5 See id.; see also State v.
Tripp, 2010 UT 9, ¶ 23, 227 P.3d 1251.
4. Utah appellate courts have yet to address the necessity
requirement in Utah’s Interception of Communications Act and
thus have had no occasion to articulate the appropriate standard
of review.
5. The parties do not separately address what standard of review
applies to our review of the district court’s denial of an
evidentiary hearing. Thus, it appears they both contend that we
should apply the mixed standard of review generally applicable
to rulings on motions to suppress. This approach is consistent
with precedent from this court. See State v. Sanchez, 2020 UT App
158, ¶ 14, 477 P.3d 501.
20200230-CA 5 2022 UT App 136State v. Hebeishy & Sadler
¶13 Second, Hebeishy separately contends that the district
court erred in denying his motion to dismiss two of the predicate
offenses on which the pattern of unlawful activity charge was
based, asserting that the State cannot rely on the offenses because
they are barred by the applicable statute of limitations, the double
jeopardy clause, and Utah’s single criminal episode statute. A
district court’s denial of a motion to dismiss presents a question
of law, which we review for correctness. State v. Rushton, 2017 UT
21, ¶ 9, 395 P.3d 92.
ANALYSIS
I. Motion to Suppress
A. The Necessity Determination
¶14 Before entering their guilty pleas, Defendants sought to
suppress the evidence obtained through the court-authorized
wiretap of Hebeishy’s mobile phone. Defendants argued, among
other things, that in seeking the wiretap order, law enforcement
failed to satisfy the necessity requirement of Utah’s Interception
of Communications Act (the Act). 6 See Utah Code Ann. § 77-23a-
10(1)(c) (LexisNexis 2017) (requiring that an application for a
wiretap order include “a full and complete statement as to
whether other investigative procedures have been tried and failed
or why they reasonably appear to be either unlikely to succeed if
tried or too dangerous”). 7
6. Because there have been no substantive changes to the relevant
statutory provisions, we cite the current version of the Utah Code
for the reader’s convenience.
7. The Act allows any “aggrieved person in any trial, hearing, or
proceeding in or before any court” to move to suppress an
unlawfully intercepted communication. See Utah Code Ann. § 77-
(continued…)
20200230-CA 6 2022 UT App 136State v. Hebeishy & Sadler
¶15 The same necessity argument was made by co-defendants
Sadat Hebeishy and Brock Pickett in support of their motions to
suppress, and the district court resolved the co-defendants’
respective motions to suppress together. And although
Defendants’ appeals of the court’s denial of their motions to
suppress based on an alleged absence of necessity have not been
consolidated with the appeals of their co-defendants, Defendants
present materially indistinguishable arguments on this point. 8 For
the reasons set forth in companion case State v. Sadat Hebeishy,
2022 UT App 134, ¶¶ 15–33, we reject Defendants’ challenge to the
district court’s determination that necessity for the wiretap order
was shown and its denial of their motion to suppress on that basis.
B. Defendants’ Claims of False Statements and Material
Omissions
¶16 In addition to challenging the district court’s necessity
determination, Defendants also argue that the court erred in
rejecting their contention that the affidavit supporting law
enforcement’s application for a wiretap order contained false
statements and material omissions. Defendants assert that
because the affidavit “contains serious flaws that call into
question the validity of the information” on which the court based
23a-10(11)(a) (LexisNexis 2017). An “aggrieved person” is defined
in the Act as “a person who was a party to any intercepted wire,
electronic, or oral communication, or a person against whom the
interception was directed.” Id. § 77-23a-3(1). The State does not
contest Sadler’s standing to challenge the wiretaps on Hebeishy’s
mobile phone. Thus, we assume that Sadler is an “aggrieved
person” under the Act for purpose of the wiretap.
8. Defendants appear to challenge the necessity determination
relative to only the wiretap order on Tamer Hebeishy’s mobile
phone, and they do not appear to challenge the necessity
determination relative to the wiretap order on Sadat Hebeishy’s
mobile phone.
20200230-CA 7 2022 UT App 136State v. Hebeishy & Sadler
its probable cause and necessity determinations, the district court
should have granted their request for a Franks hearing or
otherwise suppressed the evidence obtained through the wiretap.
To put this argument in context, we describe the relevant
standards and the basis for the district court’s denial of
Defendants’ motion. We then address Defendants’ challenge on
appeal.
1
¶17 The Fourth Amendment to the United States Constitution
provides that “no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.” U.S.
Const. amend. IV.
¶18 In considering whether to authorize a search warrant, a
magistrate “must rely on the representations of the investigating
officer, who sets forth in the warrant affidavit the facts the officer
contends are sufficient to meet the probable cause standard.” State
v. Gonzalez, 2021 UT App 83, ¶ 22, 494 P.3d 1066; see also Franks v.
Delaware, 438 U.S. 154, 164–65 (1978). Although not every recited
fact need be correct, the United States Supreme Court in Franks v.
Delaware explained that the assertions must be “truthful in the
sense that the information put forth is believed or appropriately
accepted by the affiant as true.” 438 U.S. at 165 (cleaned up).
¶19 If a defendant believes that the investigating officer’s
assertions in support of the search warrant were untruthful, the
defendant may challenge the warrant and seek an evidentiary
hearing—a Franks hearing—to prove that claim. See id. at 171–72;
see also Gonzalez, 2021 UT App 83, ¶ 23. But there is “a
presumption of validity with respect to the affidavit supporting
the search warrant.” Franks, 438 U.S. at 171. “To mandate an
evidentiary hearing, the challenger’s attack must be more than
conclusory and must be supported by more than a mere desire to
cross-examine. There must be allegations of deliberate falsehood
or of reckless disregard for the truth, and those allegations must
20200230-CA 8 2022 UT App 136State v. Hebeishy & Sadler
be accompanied by an offer of proof.” Id. Further, to warrant a
Franks hearing, a defendant must also demonstrate that “the
allegedly false statement is necessary to the finding of probable
cause.” Id. at 156. And if after a Franks hearing a defendant
ultimately proves the same by a preponderance of the evidence,
the “warrant must be voided” and resultant evidence suppressed.
Id.; see also State v. Fuller, 2014 UT 29, ¶ 26, 332 P.3d 937.
¶20 By an extension of reasoning, Utah and federal courts have
applied the Franks standard to alleged omissions of material facts.
See Gonzalez, 2021 UT App 83, ¶ 23. To warrant a Franks hearing
for an alleged omission, “a defendant must, by a detailed offer of
proof,” “make a substantial showing” that the investigating
officer “intentionally or recklessly omitted facts required to
prevent technically true statements in the affidavit from being
misleading” and “demonstrate that the affidavit if supplemented
by the omitted information would not have been sufficient to
support a finding of probable cause.” Id. ¶ 24 (cleaned up).
¶21 Further, federal courts have allowed defendants to seek a
Franks hearing for allegedly false statements or misleading
omissions material to the necessity determination required by the
federal wiretap statute. 9 See United States v. Ippolito, 774 F.2d 1482,
1485 (9th Cir. 1985) (explaining that while the Franks decision
addressed probable cause, its reasoning now applies to the
necessity determination because of “the importance of truthful
information to the neutral detached magistrate who must . . .
decide whether to issue a wiretap order”); see also United States v.
Goldstein, 989 F.3d 1178, 1197 (11th Cir. 2021); United States v.
Rajaratnam, 719 F.3d 139, 153 (2d Cir. 2013); United States v. Green,
175 F.3d 822, 828 (10th Cir. 1999). Thus, evidentiary hearings have
been granted where false statements or omissions made with the
9. As we explained in State v. Sadat Hebeishy, 2022 UT App 134,
“Utah’s necessity requirement is substantially identical to the
necessity requirement in the federal wiretap statute.” Id. ¶ 18
(cleaned up).
20200230-CA 9 2022 UT App 136State v. Hebeishy & Sadler
requisite mens rea have been shown to undermine either the
probable cause or the necessity determination.
¶22 “It is relatively difficult for a defendant to make the
substantial preliminary showing required under Franks.
Allegations of negligent or innocent mistakes do not entitle a
defendant to a hearing, nor do conclusory allegations of
deliberately or recklessly false information.” United States v.
McMurtrey, 704 F.3d 502, 509 (7th Cir. 2013) (cleaned up), cited in
Fuller, 2014 UT 29, ¶ 25 n.11. As our supreme court has stated,
“[t]he burden on the defendant here is high.” Fuller, 2014 UT 29,
¶ 25. The defendant “must specifically point to portions of the
affidavit” claimed “to be misleading,” and if the defendant’s
claim is not properly substantiated, the defendant “is not entitled
to an evidentiary hearing.” Id.¶23 Here, the district court denied Defendants’ motion for a
Franks hearing, concluding Defendants had failed “to meet the
evidentiary showing required by Franks.” Specifically, the court
found that they “failed to demonstrate that any of the factual
allegations underlying the previous law enforcement activities
were false” or that Officer’s affidavit was otherwise “inaccurate,
false, or misleading.” The court further found that even if there
had been a misleading statement in the affidavit, Defendants had
not shown that Officer acted “knowingly, intentionally, or
recklessly.” The court also determined that Defendants had not
established that the allegedly misleading statements or omissions
were “material to the finding of necessity” or “probable cause,”
and it observed that Defendants’ allegations were merely
“arguments against the conclusions to be drawn from” the
information in the affidavit.
2
¶24 Even assuming that we should extend the rationale of
Franks and its progeny to the Act’s necessity requirement as
federal courts have done relative to the federal wiretap statute, we
20200230-CA 10 2022 UT App 136State v. Hebeishy & Sadler
conclude that Defendants have not shown that the district court
erred in denying their request for a Franks hearing.
¶25 We first address Defendants’ contention that a Franks
hearing was required because the affidavit Officer provided in
support of the wiretap application “included an abundance of
false and misleading statements.” In support of that claim,
Defendants point exclusively to a statement Officer made at the
outset of the necessity section of his affidavit.
¶26 There, Officer acknowledged that “there are a number
of practical methods whereby law enforcement officials can
procure prosecutable evidence” against those individuals or
organizations under investigation. He described some of those
methods but explained that traditional investigative techniques
are, at times, “unpractical, unfeasible, or too dangerous” to
employ. Officer then expressed his belief that a wiretap was
necessary in this case because “traditional investigatory methods
have failed to realize the dissolution of the Titanic Crip Society
criminal street gang”—the stated goal of the investigation—and
because traditional investigatory methods were “either
unpractical, too dangerous, or unlikely to result in the
procurement of evidence to prosecute fully the participants who
engage in criminal conduct on behalf and for the benefit of the
organization.” Defendants’ challenge appears to be directed to
Officer’s last two assertions.
¶27 We agree with the district court that these contentions were
insufficient to meet the demanding evidentiary showing required
by Franks.
¶28 To begin, Defendants have not shown that the court
committed clear error in finding that Officer’s assertions were not
false. To the contrary, Officer’s catalog of law enforcement’s
previous efforts to combat TCS’s criminal activities supported
Officer’s claim that despite occasional successes, the criminal
organization endured. See State v. Sadat Hebeishy, 2022 UT App
134, ¶¶ 5, 8, 11, 20–33. Similarly, Officer’s detailed description of
20200230-CA 11 2022 UT App 136State v. Hebeishy & Sadler
why he believed traditional investigative techniques were
inadequate to achieve the goal of the investigation—to dismantle
the gang by building a case against TCS’s shot callers—
demonstrated a reasonable basis for his belief. See id. Although
Defendants may disagree with Officer’s assertions about the
inefficacy of traditional investigative techniques, Defendants
have not shown that the stated belief was false. In fact, even
though Defendants suggest that search warrants were
occasionally effective and a juvenile gang member shared
information with law enforcement, Defendants have not shown
that it was false for Officer to assert that these techniques could
not achieve the goal of the investigation.
¶29 Further, Defendants have not shown error in the district
court’s additional determinations that Defendants failed to show
that Officer made the allegedly false statements knowingly,
intentionally, or recklessly or that probable cause or necessity
would have been lacking had the identified statements been
omitted from the affidavit. Defendants merely accuse Officer of
intentionally misleading the magistrate, but they have not shown
that the court erred in deciding that their offer of proof on that
point was inadequate. Similarly, Defendants have not engaged
with the entirety of the 180-page affidavit and demonstrated that
if the assertions about which they complain were removed, either
the probable cause or the necessity requirements would have been
unmet. Without analysis on these points, Defendants cannot meet
their burden of showing that a Franks hearing was warranted. See
State v. Ogden, 2018 UT 8, ¶ 24 n.3, 416 P.3d 1132 (“An appellant
that fails to devote adequate attention to an issue is almost
certainly going to fail to meet its burden of persuasion.” (cleaned
up)).
¶30 Next, we address Defendants’ contention that “[t]here
are several instances of intentionally omitting information that
would be crucial to an adequate analysis for the issuance of a
search warrant.” Although Defendants complain of “several”
omissions, they identify only one: Officer’s alleged omission that
20200230-CA 12 2022 UT App 136State v. Hebeishy & Sadler
“there had never been an attempt to dismantle the TCS gang.” But
beyond identifying the alleged omission, Defendants do not
otherwise engage with the requisite analysis to demonstrate that
the district court erred in denying their request for a Franks
hearing.
¶31 As explained above, see supra ¶ 20, to warrant a Franks
hearing for an alleged omission, a defendant must, “by a
detailed offer of proof,” make a “substantial showing” that
the officer “intentionally or recklessly omitted facts required
to prevent technically true statements in the affidavit from
being misleading.” State v. Gonzalez, 2021 UT App 83, ¶ 24, 494
P.3d 1066 (cleaned up). A defendant must also show that the
affidavit would fail to establish probable cause or necessity if
it were to be supplemented by the omitted information. See
id. Defendants make no attempt to demonstrate that these
elements were met in the district court. They point to no offer of
proof that would suggest (1) that there had, in fact, never been
an attempt to dismantle TCS; (2) that, even if true, Officer
intentionally, knowingly, or recklessly omitted the alleged fact;
(3) that without the alleged fact, the affidavit was misleading; or
(4) that had the alleged fact been included, probable cause or
necessity could not have been established. Absent an attempt
to establish that these elements were met, Defendants’ Franks
claim based on an alleged omission necessarily fails. See Ogden,
2018 UT 8, ¶ 24 n.3. Therefore, the district court did not err in
denying Defendants’ motion to suppress without holding a Franks
hearing.
II. Pattern of Unlawful Activity
¶32 Hebeishy challenges the district court’s denial of his
motion to dismiss two of the four predicate offenses that
supported the charge against him for pattern of unlawful activity.
Specifically, Hebeishy sought dismissal of predicate offense nine
for aggravated assault and predicate offense fourteen for assault
by a prisoner. Hebeishy argued that neither could be included as
20200230-CA 13 2022 UT App 136State v. Hebeishy & Sadler
a predicate offense because the statute of limitations applicable to
the offenses had expired. Alternatively, Hebeishy argued that
predicate offense nine’s inclusion violated the prohibition against
double jeopardy. For the reasons explained below, we reject both
claims.
¶33 Utah’s Pattern of Unlawful Activity Act (UPUAA)
“criminalizes certain acts involving a pattern of unlawful
activity.” State v. Stewart, 2018 UT 24, ¶ 6, 438 P.3d 515. “‘Pattern
of unlawful activity’ means engaging in conduct which
constitutes the commission of at least three episodes of unlawful
activity, which episodes are not isolated, but have the same or
similar purposes, results, participants, victims, or methods of
commission, or otherwise are interrelated by distinguishing
characteristics.” Utah Code Ann. § 76-10-1602(2) (LexisNexis
Supp. 2022).
¶34 UPUAA requires that “[a]t least one of the episodes
comprising a pattern of unlawful activity shall have occurred after
July 31, 1981,” and states that “[t]he most recent act constituting
part of a pattern of unlawful activity . . . shall have occurred
within five years of the commission of the next preceding act
alleged as part of the pattern.” Id.¶35 Predicate offense nine, on which the pattern of unlawful
activity charge against Hebeishy was based, is an aggravated
assault that Hebeishy allegedly committed on September 17, 2008.
Predicate offense fourteen is an assault by a prisoner allegedly
committed by Hebeishy on April 8, 2011. Both offenses are
felonies with a statute of limitations of four years. See id. § 76-1-
302(1)(a) (statute of limitations of felonies is four years unless
otherwise provided by law); id. § 76-5-102.5(3) (assault by prisoner
is a felony); id. § 76-5-103(3) (aggravated assault is a felony).
Hebeishy argues that including these offenses as part of the
pattern of unlawful activity charge was “an impermissible
violation of the statute of limitations” because the pattern of
unlawful activity charge was filed on June 22, 2016—more than
20200230-CA 14 2022 UT App 136State v. Hebeishy & Sadler
four years after the predicate offenses were allegedly committed.10
We disagree.
¶36 The district court correctly concluded that Hebeishy’s
argument has been resolved by our supreme court in State v.
Stewart, 2018 UT 24, 438 P.3d 515. There, the court was asked
“whether individual crimes that are outside of the relevant statute
of limitations can form the basis of [a pattern of unlawful activity]
charge.” Id. ¶ 24. The court answered the question in the
affirmative. It concluded that UPUAA “permits the State to base
a pattern of unlawful activity on crimes on which the statute of
limitations has expired.” Id. ¶ 25. Otherwise, the court reasoned,
it “would read the five-year lookback out of the statute.” Id. ¶ 17.
The court explained: “[I]magine a prosecutor who relies on three
instances of misdemeanor assault to establish a pattern of
unlawful activity. If the statute required all three instances of
assault to be not time barred, all three instances must occur within
the two year statute of limitations for misdemeanor crimes. This
interpretation renders the five-year lookback period
meaningless.” Id.
10. Pattern of unlawful activity is itself subject to the general four-
year statute of limitations for a felony. See Utah Code Ann. § 76-
10-1603.5(1) (LexisNexis 2017). That period begins to run at the
time of the most recent predicate act, which in this case was
aggravated assault (predicate offense one) committed on
November 30, 2015. The next preceding act, obstruction of justice
(predicate offense two), occurred just one week earlier. Thus, the
pattern of unlawful activity charge was filed within the four-year
statute of limitations and the penultimate act falls within the five-
year lookback period. Hebeishy does not contend the pattern of
unlawful activity charge itself violates the statute of limitations;
instead, he contends that two of the predicate offenses on which
the charge is based are barred by the statute of limitations that
would apply to them if they were charged separately.
20200230-CA 15 2022 UT App 136State v. Hebeishy & Sadler
¶37 In this case, the statute of limitations for both predicate
offenses expired before the pattern of unlawful activity charge
was filed. But under Stewart, the predicate offenses need not be
timely under their respective statute of limitations. In his reply on
appeal, Hebeishy does not resist this conclusion, but he argues
that even if the State may premise a pattern of unlawful activity
charge on an offense on which the individual statute of limitations
has expired, the proper reading of Stewart then dictates that the
five-year lookback period in UPUAA “extends the statute of
limitation” on all predicate offenses to five years. Relying on that
five-year period, Hebeishy argues that predicate offenses nine
and fourteen are still time barred because both occurred more
than five years before the pattern of unlawful activity charge was
filed.
¶38 We do not share Hebeishy’s view of Stewart. The language
in Stewart on which Hebeishy relies does not support his
interpretation. There is nothing in the court’s analysis to suggest
that it interpreted UPUAA’s five-year lookback as imposing a
five-year statute of limitations on all predicate offenses. See id.¶¶ 14–17, 24. Further, such an interpretation would be
inconsistent with the language of the statute. As noted above,
UPUAA dictates that “[t]he most recent act constituting part of a
pattern of unlawful activity . . . shall have occurred within five
years of the commission of the next preceding act alleged as part
of the pattern.” Utah Code Ann. § 76-10-1602(2). Plainly
interpreted, this provision “requires that no more than five years
separate the penultimate episode of unlawful activity from the
most recent episode in the pattern.” Stewart, 2018 UT 24, ¶ 15. It
“does not refer to the statute of limitations for the underlying
crimes.” Id. Accordingly, Hebeishy’s claim fails. 11
11. Hebeishy additionally argues that the Stewart court intended
to draw a distinction between convictions and allegations of
criminal wrongdoing, arguing that convictions that fall outside the
(continued…)
20200230-CA 16 2022 UT App 136State v. Hebeishy & Sadler
¶39 Finally, Hebeishy contends in the alternative that predicate
offense nine (aggravated assault) should have been dismissed as
a violation of double jeopardy and Utah’s single criminal episode
statute because Hebeishy was already convicted of riot based on
the same underlying facts that establish the predicate offense of
aggravated assault. Hebeishy argues that the State “transformed”
the riot conviction into the predicate offense of aggravated assault
because “riot is not listed as one of the allowable predicate
offenses delineated in Utah Code Ann. § 76-10-1602(4).” He
asserts that this “alteration” “violates the double jeopardy and
[Utah’s] single criminal episode protections” and contends that
the district court erred in not dismissing predicate offense nine on
these grounds. We reject Hebeishy’s challenge on the basis that it
is inadequately briefed.
¶40 The United States and Utah constitutions declare that no
person shall “be twice put in jeopardy” for “the same offence.”
U.S. Const. amend. V; Utah Const. art. I, § 12. These “double
jeopardy clauses” protect a defendant from “prosecution for the
same offense” after acquittal or conviction, and from “the
infliction of multiple punishments for the same offense.” State v.
Robertson, 2017 UT 27, ¶ 15, 438 P.3d 491 (cleaned up). Two
applicable statute of limitations “can be listed as predicate
offenses in support [of] a charge of Pattern of Unlawful Activity”
but that “allegations of crimes that are beyond” their applicable
statute of limitations could not be. (Emphasis added.) We also
reject this argument as unsupported by the analysis in Stewart and
the plain language of UPUAA. Neither authority draws any such
distinction. See State v. Stewart, 2018 UT 24, ¶¶ 10–25, 438 P.3d 515;
see also Utah Code Ann. § 76-10-1602(4) (LexisNexis Supp. 2022)
(drawing no distinction between predicate acts based on
convictions or mere allegations of wrongdoing and instead
defining unlawful activity as “conduct” or “an act” “which would
constitute” any of the listed offenses “regardless of whether the act is
in fact charged or indicted by any authority” (emphasis added)).
20200230-CA 17 2022 UT App 136State v. Hebeishy & Sadler
offenses are “not the same when each requires proof of a fact
which the other does not.” Id. ¶ 16 (cleaned up).
¶41 Utah’s single criminal episode statute “extends this
protection even further—protecting, by statute, a defendant from
multiple prosecutions for different offenses committed as part of a
single criminal episode.” State v. Sisneros, 2022 UT 7, ¶ 1, 506 P.3d
564; see also Utah Code Ann. §§ 76-1-401 to -403 (LexisNexis 2017).
The statute “bars the State from subjecting a defendant to separate
trials for multiple offenses that arise under a single criminal
episode when the offenses are within the jurisdiction of a single
court and are known to the prosecuting attorney at the time the
defendant is arraigned on the first information or indictment.”
Sisneros, 2022 UT 7, ¶ 11 (cleaned up). A “single criminal episode”
is defined under the statute as “all conduct which is closely
related in time and is incident to an attempt or an accomplishment
of a single criminal objective.” Utah Code Ann. § 76-1-401.
¶42 The State argues that Hebeishy’s challenges to predicate
offense nine on these two bases “should be rejected because they
are inadequately briefed.” The State acknowledges that Hebeishy
generally recites the law regarding double jeopardy and single
criminal episode principles but asserts that Hebeishy’s argument
is otherwise limited to “a single conclusory sentence.” According
to the State, Hebeishy does not “analyze the facts and the law or
otherwise demonstrate how either of these complex legal
doctrines has been violated.” We agree.
¶43 The district court expressly addressed Hebeishy’s
argument based on the double jeopardy clause, concluding that it
“is not violated in a Pattern of Unlawful Activity charge where
predicate offenses relied on are prior convictions.” 12 The district
12. The court denied Hebeishy’s motion to dismiss in its entirety
but did not separately address Hebeishy’s argument based on the
single criminal episode statute—an argument that was
intertwined with the double jeopardy argument.
20200230-CA 18 2022 UT App 136State v. Hebeishy & Sadler
court observed that because there is an additional element in the
pattern of unlawful activity charge, “the double jeopardy doctrine
does not apply.” But in challenging the district court’s ruling,
Hebeishy does not address the basis for the court’s decision or
identify any specific flaw in its reasoning. Instead, Hebeishy
simply repeats the arguments he made below without engaging
in the necessary analysis to demonstrate error by the district court.
Further, even putting the district court’s decision aside, Hebeishy
has not articulated a reasoned basis for us to conclude that double
jeopardy applies where the offense for which he was convicted
(riot) and the offense charged here (pattern of unlawful activity)
“each require[] proof of a fact which the other does not.” See
Robertson, 2017 UT 27, ¶ 16 (cleaned up).
¶44 Similarly, regarding his argument based on the single
criminal episode statute, Hebeishy defends the absence of
reasoned analysis on the point by attempting to shift his burden
to the State. Rather than respond to the identified deficiencies in
his own argument, Hebeishy states only that the State’s position
“goes against the statutes and the case law,” but Hebeishy does
not analyze how the single criminal episode statute intersects
with UPUAA and whether the elements of the statute were
satisfied here. See supra ¶ 41 (identifying elements of a challenge
based on the single criminal episode statute).
¶45 In both instances, Hebeishy’s challenge is inadequate. It is
Hebeishy who bears the burden on appeal, and to carry that
burden, it is incumbent on him to address the district court’s
ruling, develop citation to authority, and present reasoned
analysis based on that authority. See State v. MacNeill, 2017 UT
App 48, ¶ 84, 397 P.3d 626; see also Utah R. App. P. 24(a)(8) (“The
argument must explain, with reasoned analysis supported by
citations to legal authority and the record, why the party should
prevail on appeal.”). Because Hebeishy has not met his burden,
his challenge fails. See State v. Baer, 2019 UT App 15, ¶ 19, 438 P.3d
979 (“An appellant that fails to devote adequate attention to an
20200230-CA 19 2022 UT App 136State v. Hebeishy & Sadler
issue is almost certainly going to fail to meet his burden of
persuasion.” (cleaned up)).
CONCLUSION
¶46 We conclude that the district court did not err in denying
Defendants’ motion to suppress evidence obtained from a wiretap
of Hebeishy’s mobile phone. The court correctly determined that
Officer satisfied the necessity requirement of the Act, and
Defendants have not shown that they were wrongfully denied
their request for a Franks hearing based on their claims that
Officer’s affidavit was misleading. We also conclude that the court
did not err in denying Hebeishy’s motion to dismiss predicate
offenses nine and fourteen on the basis that they were barred by
the applicable statute of limitations, and Hebeishy has not shown
that the court erred in declining to dismiss offense nine on the
alternative grounds that it violated double jeopardy or Utah’s
single criminal episode statute. For these reasons, we affirm.
20200230-CA 20 2022 UT App 136