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Media Alerts - United States of America v. Matthew Getto - Second Circuit
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September 9, 2013
  United States of America v. Matthew Getto - Second Circuit
Headline: Second Circuit Refuses to Exclude Evidence Obtained Through Searches and Seizures Undertaken in Israel by Israeli National Police pursuant to FBI Request

Area of Law: Constitutional, Criminal

Issue(s) Presented: Whether evidence obtained by foreign law enforcement authorities is subject to exclusion under the Fourth Amendment.

Brief Summary: Defendant-appellant Matthew Getto, an American citizen living in Israel prior to his arrest, participated in a scheme based in Israel to defraud American citizens. The FBI, after receiving a tip from a United States witness and conducting an initial investigation, filed a request with the Israeli National Police (INP) to investigate the scheme. Pursuant to the request, the INP investigated and eventually obtained Israeli court authorization to search a room used to facilitate the fraud. Based in part on the evidence gathered during the search, Getto was arrested in the United States in 2009 and charged with conspiracy to commit mail and wire fraud in telemarketing. Getto moved to exclude the evidence gathered by INP as inadmissible under the Fourth Amendment. The United States District Court for the Southern District of New York denied his motion and Getto was convicted under 18 U.S.C. §§ 1349, 2326(2). The United States Court of Appeals for the Second Circuit affirmed, finding that the Fourth Amendment did not apply to the evidence obtained by foreign law enforcement officials. To read the full opinion, please visit:

Extended Summary: Matthew Getto, an American citizen, participated in an elaborate telemarketing scheme, based in Israel, and aimed at defrauding Americans. In essence, Getto and other conspirators, posing as lawyers or other staff working for a fictional lottery, called and informed American citizens that they had won a substantial international sweepstakes, and requested money from the victims to pay taxes and fees. In 2008, acting on a tip from a witness in the United States, the FBI performed an initial investigation and then formally requested that the Israeli National Police (INP) conduct a further investigation. Eventually, the INP obtained Israeli court approval to conduct clandestine surveillance and searches of a room used in connection with the conspiracy. Thereafter, the evidence INP collected formed part of the basis for Getto's 2009 arrest in the United States. Following a bench trial on stipulated facts, the United States District Court for the Southern District of New York held all of the INP evidence admissible and convicted Getto of conspiracy to commit mail and wire fraud in telemarketing under 18 U.S.C. §§ 1349, 2326(2).

The Fourth Amendment, among other things, prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause. United States Supreme Court cases establish that evidence obtained in violation of the Fourth Amendment can be excluded as inadmissible in a criminal proceeding. The Supreme Court has justified the "exclusionary rule," in part, as necessary to deter law enforcement from gathering evidence illegally. The Second Circuit has expressly recognized, however, that because United States courts lack ability to deter foreign police investigations, the Fourth Amendment's exclusionary rule does not apply to evidence obtained by foreign police unless the facts bring the case into one of two narrow exceptions to this general rule. Evidence obtained by foreign police officials will only be excluded under the Fourth Amendment if: (1) the foreign officials obtain the evidence through actions that are so deplorable they shock "judicial conscience;" or (2) when cooperation with foreign enforcement officials is such that foreign police act as "agents or virtual agents" of United States law enforcement, or when cooperation between United States and foreign authorities is designed to intentionally evade constitutional requirements.

Getto argued that the INP evidence should have been excluded because under all three of the exceptions to the general rule limiting the application of the Fourth Amendment to conduct of foreign police. The Second Circuit first rejected Getto's claim that the evidence should be suppressed because INP officers acted so egregiously their conduct "shocked the judicial conscience." The court reasoned that this exception generally applies only to violations of fundamental international norms of decency, such as the use of physical torture. Next Getto argued that the FBI and INP collaborated so closely that the evidence should be excluded. Getto pointed to facts such as the FBI's formal request for the INP to investigate the conspiracy, the sharing of information between the INP and FBI, and the INP's failure to prosecute him in Israel. The court rejected this argument as well, finding that a request that foreign law enforcement investigate and even "robust" information sharing does not constitute evidence that United States law enforcement officials controlled or directed the foreign parallel investigation as is required to fall into the "virtual agents" exception. The court further found no evidence of intent to evade American constitutional requirements. In rejecting Getto's arguments, the Second Circuit expressly declined, as it had in the past, to adopt a broader "joint venture" doctrine to evaluate whether cooperation between United States and foreign law enforcement raises constitutional implications.
The Second Circuit agreed with Getto that he was improperly sentenced because the District Court failed to make particularized findings required to sentence Getto for actions of his co-conspirators and remanded the case with instructions to vacate Getto's sentence and proceed promptly to resentencing.

To read the full opinion, please visit:

Panel (if known): Circuit Judges Cabranes, Sack and Carney.

Argument Date: 10/24/2012

Date of Issued Opinion: 09/09/2013

Docket Number: No. 11-1237

Decided: Judgment of conviction affirmed in all respects and remanded to resentence.

Case Alert Author: Christopher Roma

Counsel: Law Office of Stephanie M. Carvlin for Matthew Getto; Steve C. Lee (Assistant U.S. Attorney for the Southern District of New York) for the United States of America.

Author of Opinion: Judge Cabranes.

Circuit: 2nd Circuit.

Case Alert Circuit Supervisor: Professor Elyse Diamond Moskowitz

    Posted By: Elyse Diamond @ 09/09/2013 08:20 PM     2nd Circuit  

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