Contrary to the aforementioned reasoning, despite the question marks that remain open, I cannot determine that this was a deliberate action by the police in Israel.
First, this is a factual claim that requires appropriate foundation. The defense, although it was invited by the Honorable Justice A. Mamon to submit a reference "in writing, with reference to references, to the issues relevant to the hearing, and in particular to the legal and factual questions..." It did not seek to conduct a factual inquiry on this issue, but limited itself to legal arguments on the basis of an expert opinion that it sought to submit. The editor of the opinion was invited to testify as requested by the defense, but police officer Moshe Silberstein, for example, was not required to testify. In the absence of a factual basis, there is no assurance that the transfer to the US authorities was made with the knowledge that it was a property transfer.
Second, the appellant himself referred in the hearing in the trial court to the testimony of Investigator Silberstein in the case being conducted against him by the Tel Aviv District Court (the indictment filed in Israel), and claimed that the investigator admitted to the conscious transfer of property (p. 141 of the amended transcript). In order to put my mind at ease, I have reviewed the minutes of the hearing to which the appellant (i.e., p. 8, session of October 14, 2024, in a criminal case (Tel Aviv District) criminal case 54759-11-22 State of Israel v. Penn. However, the study revealed a different picture, according to which the investigator claimed that he was not aware that he had "digital wallets in his hand."
Third, indeed, the sequence of events detailed at length by the appellant in the notice of appeal leaves questions as to the awareness of the investigating authorities as to the nature of the materials transferred, but suspicions or doubts on the one hand and evidence on the other.
The implication of defining the substance as "dual" or "mixed" on the result
- Despite the existence of a defect as described above, I do not believe that it can change the last line of the trial court's decision. I will explain:
It should be remembered that the transfer of the investigative materials to the authorities in the United States does not give rise to any legal difficulty, and it was done within the framework of a judicial order issued lawfully. Without derogating from the aforesaid, and in view of the definition of the material that was transferred as mixed material, I am of the opinion that it was correct to act according to the track set forth in section 30 of the Legal Aid Law.