US court delivers blow to former Mozambican finance minister
Michael Chang, who is in custody in the US, had tried to have his cellphone returned to him. By
If former Mozambican finance minister Manuel Chang’s cellphone has any incriminating evidence on it, his legal problems may have escalated. Chang, who has been held in custody since late 2018, first in South Africa and then in the US, tried to have the device returned to him and possible evidence obtained through a search of it suppressed.
But a US district court in New York denied his motion on 27 March.
A 2023 warrant had authorised a search of Chang’s cellphone for all incoming and outgoing communications from March 2011 to “the present”, as well as for information including names and bank accounts.
The US Office of Public Affairs previously issued a statement about the case against Chang and his co-accused. It said it involved “two executives of a shipbuilding company, three former senior Mozambican government officials, and three former London-based investment bankers for their roles in a $2-billion fraud and money laundering scheme that victimised investors from the US and elsewhere”.
Chang was charged with conspiracy to commit crimes including wire fraud, securities fraud and money laundering.
Among the allegations he faces is that, in his capacity as Mozambican finance minister between 2005 and 2015, he had signed guarantees on behalf of the country for three fraudulent loans.
According to the US court memorandum and the order relating to his cellphone, the US requested on 21 December 2018 that authorities in South Africa, where Chang was at the time, provisionally arrest him. He was intercepted and arrested at OR Tambo International Airport on 29 December that year, as he was heading to Dubai, and his cellphone was seized.
Fast-forward a few years, and on 12 July 2023 it was finally announced that Chang had been extradited to the US. Eight days after his extradition, on 20 July 2023, the device was transferred to the custody of US Federal Bureau of Investigation (FBI) personnel in South Africa. They flew with it to the US and sent it to the agent working the case, who received it on 27 July.
About five weeks after that the US government applied for a warrant to search the cellphone. This was granted on 31 August.
Nearly three weeks later, Chang’s defence counsel realised that the US government had obtained Chang’s cellphone and applied for it to be returned and any related evidence suppressed. Chang argued that the US government’s confiscation of his cellphone was unconstitutional.
His motion said the US could generally receive evidence that foreign authorities had obtained if the way it was seized did not shock “the judicial conscience”. But Chang, the US court found, was not able to identify any conduct that would have done so.
He also argued that the US “demanded”, “directed” or “commanded” South Africa to take his cellphone without this country having done an independent investigation into him, thereby making South Africa a “virtual agent” of the US. But the court found that this was “immaterial” and that Chang was unable to show that South African authorities were agents for the US. His cellphone and related material could therefore not be suppressed based on these grounds.
Chang further tried to argue that the transfer of his cellphone from South Africa to FBI agents equated to an unconstitutional second seizure. But this also did not convince the court.
“South African authorities seized Chang’s cellphone upon his arrest,” the papers state. “For four and a half years, South African law enforcement had the phone in safekeeping and there are no allegations that South African officials searched the phone’s contents or otherwise obtained any information from the phone.”
The court papers point out that Chang only tried to have his cellphone returned after it was in the FBI’S possession.
In terms of privacy, the court found that Chang was not able to access his cellphone while in custody and would not be able to use it while detained ahead of his trial. “Chang’s privacy interests are therefore outweighed by his current incarceration and inability to use the phone.”
Chang is reportedly due to go on trial in New York towards the end of July.