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US court hangs up on Manuel Chang’s attempt to have cellphone seized in SA returned to him

US court hangs up on Manuel Chang’s attempt to have cellphone seized in SA returned to him
Former Mozambican finance minister Manuel Chang at the Africa Rising Conference in Maputo on 30 May 2014. (Photo: Stephen Jaffe / IMF via Getty Images)

In 2023, ex-Mozambican finance minister Manuel Chang was sent from South Africa to the US where he was charged in a $2-billion fraud and money laundering case. Last month he failed to get his cellphone, initially seized in this country, returned to him and potential evidence on it suppressed.

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 detained since late 2018, first in South Africa and then in the US, tried to have the device returned to him in that country and evidence obtained through a search of it suppressed.

But last month, on 27 March 2024, the Eastern District of New York court denied his motion.

Read more in Daily Maverick: Manuel Chang denied bail in New York over flight-risk fears

It means that whatever was produced via a warrant that authorised a search of Chang’s cellphone could be used as evidence.

The warrant related to certain “violations” and was for all incoming and outgoing communications from March 2011 to “the present,” as well as for information including names and bank accounts.

Chang is reportedly set to go on trial in New York towards the end of July 2024.

$2-billion fraud case

The US Office of Public Affairs previously issued a statement about the case in which he is 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 United States and elsewhere”.

Chang was charged with conspiracy to commit crimes including wire fraud, securities fraud and money laundering.

Among the allegations he faced was that in his capacity as Mozambican finance minister (which was between 2005 and 2015), he had signed guarantees on behalf of that country for three fraudulent loans.

Before arriving in the US where he was wanted for that case, Chang faced legal drama in South Africa.

A rough timeline of this – and how his cellphone fits into the saga – is contained in a US court memorandum and order from last month that resulted in him failing to have the device returned.

Arrested en route to Dubai

According to those court papers, on 21 December 2018 the US requested that South Africa, where Chang was at the time, provisionally arrest him.

Six days later, South Africa authorised Chang’s arrest and on 29 December 2018 he was detained.

Read more in Daily Maverick: Manuel Chang finally on way to the US after FBI kept waiting due to red tape delays

According to a South African government statement: “He was intercepted and arrested at OR Tambo International where he was on-bound for Dubai.”

Fast-forward a few years and on 12 July 2023, South Africa finally announced Chang had been extradited to the US.

The US court papers from last month said his cellphone had been seized during his 2018 arrest in South Africa.

The cellphone and the FBI

Eventually, eight days after his extradition, on 20 July 2023, it was transferred to the custody of US Federal Bureau of Investigation (FBI) personnel in South Africa.

On 23 July 2023, FBI personnel flew with the cellphone to the US and two days later sent it to the agent on the case who received it days later, on 27 July.

About five weeks after that the US government applied for a warrant to search the cellphone and this was granted on 31 August 2023.

Nearly three weeks later, Chang’s defence counsel realised the US government had obtained Chang’s cellphone and applied for it to be returned and related evidence suppressed.

According to the US court papers from last month, Chang had argued the US government’s confiscation of his cellphone was unconstitutional.

‘Judicial conscience’

It said the US could generally receive evidence that foreign authorities had obtained if the way it was seized did not shock “the judicial conscience”.

Chang, the US court found, was not able to identify any conduct that “shocks the judicial conscience”.

He had also argued that the US “demanded”, “directed” or “commanded” South Africa to take his cellphone without this country having an independent investigation against him, thereby making South Africa a “virtual agent” of the US.

Read more in Daily Maverick: High court orders Mozambique’s ex-finance minister Manuel Chang to stand trial in US

But the court found that it was “immaterial” that South Africa had not conducted an independent investigation into Chang.

It also found that Chang was unable to show that South African authorities were agents for the US, so his cellphone and related material could not be suppressed based on those grounds.

Phone in South African safekeeping

Chang further tried arguing that the transfer of his cellphone from South Africa to FBI agents equated to an unconstitutional second seizure.

But this did not convince the court either.

“Here, South African authorities seized Chang’s cellphone upon his arrest,” the papers from last month stated.

“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 pointed out that Chang only tried to have his cellphone returned after it was in the US’s possession.

In terms of privacy, the court found Chang was not unable to access his cellphone in custody and would not be able to use it while detained ahead of trial.

“Chang’s privacy interests are therefore outweighed by his current incarceration and inability to use the phone.” DM

This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R35.

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