COLLEEN KOLLAR-KOTELLY, District Judge.
Defendants Gezo Goeong Edwards, William Bowman, Henry Brandon Williams, and eleven co-Defendants were charged by superseding indictment with one count of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and thirteen other individual counts. Superseding Indictment, ECF No. [28], at 1-8. Defendants Edwards, Bowman, and Williams are proceeding to trial. Presently before the Court are the following motions in limine:
Defendant Edwards' [244] motion to suppress and Defendant Bowman's [248] motion to suppress seek to suppress the wiretap interception authorizations issued for telephones purportedly used by Defendant Bowman. Defendant Edwards' [247] motion to amend seeks to amend his motion to suppress the wiretap to include the affidavits filed in support of the wiretap applications, which were inadvertently omitted from his initial filings. The other motions listed above ask the Court to suppress other evidence obtained at least in part because of the intercepted communications, on the basis that this evidence is "fruit of the poisonous tree." For the reasons stated below, Defendant Edwards' [247] Motion to Amend Motion to Suppress Evidence Obtained from Interception of Wire Communications is GRANTED; the remaining motions are DENIED.
The Government alleges that from January 2009 until April 2011, the Defendants engaged in a conspiracy to distribute and possess with intent to distribute large quantities of cocaine. Superseding Indictment at 1-3. Specifically, the Government asserts that Defendants Edwards and Bowman obtained large quantities of cocaine from supplier(s) in southern California, and transported the cocaine back to the Washington, D.C. metropolitan area. Gov't Resp., ECF No. [290], at 2. Defendant Bowman would then (1) distribute some of the cocaine to other narcotics traffickers, including Defendant Williams; (2) distribute some of the cocaine on behalf of Defendant Edwards; and (3) convert some of the cocaine to cocaine base ("crack cocaine"), and distribute the crack cocaine to his own customers. Id. As part of the investigation, the Government applied for and received several court-authorized wiretap interceptions of three separate cellular telephones, discussed below.
On December 7, 2010, the Government submitted an application for an order authorizing the interception of wire communications to and from Target Telephone 1. The Affidavit of FBI Special Agent Timothy S. Pak noted that the cellular phone was registered to John Doe and associated with a fictitious address in the District of Columbia, but had been used by Bowman on several occasions. 12/7/10 Pak Aff. ¶¶ 4b, 7. Judge Richard W. Roberts granted the application, but the wiretap was terminated due to a lack of activity on December 27, 2010. Gov't Resp. at 4 n. 3. 1/13/11 Pak Aff. ¶ 4c.
On January 13, 2011, the Government submitted an application for an order authorizing the interception of wire communications to and from Target Telephone 2. 1/13/11 Pak Aff. TT2 was registered to "Sam Leonard" and associated with a fictitious address in the District of Columbia. Id. at ¶ 7. The Affidavit listed Bowman, Andrew Colter, Omar Ismaeel, Slonsio Cheah, and Michael Rivers as possible targets of the wiretap. Id. at ¶ 5. It specifically alleged that the investigation "has determined that Bowman is utilizing the target telephone to discuss and facilitate drug trafficking in the Washington, D.C. area," and the wiretap was sought in order to determine:
1/13/11 Pak Aff. ¶¶ 7, 9b. The factual allegations contained in the Affidavit are discussed at length infra, Section III.A, C. Chief Judge Royce C. Lamberth authorized the wiretap for thirty days. Gov't Ex. A. Judge Richard W. Roberts reauthorized the wiretap for additional thirty day periods on February 11, 2011, March 11, 2011, and April 8, 2011. Gov't Exs. B-D. Defendant Edwards was added as a possible target as part of the April 8, 2011 reauthorization. 4/8/11 Pak Aff. ¶ 6.
On March 19, 2011, the Government submitted an application for an order authorizing the interception of wire communications to and from Target Telephone 3. 3/21/11 Pak Aff. TT3 was registered to William Bowman and associated with 125 16th Street, NE, Washington, D.C. Id. at ¶ 7. The Affidavit listed Bowman, Edwards, Slonsio Cheah, Tracy Brooks, Willie Moorer, Robert Richards, and Shawn Lucas as possible targets of the wiretap. Id. at ¶ 5. Judge Roberts reauthorized the wiretap for an additional thirty days on April 15, 2011. Gov't Ex. F.
The Grand Jury returned the Superseding Indictment on June 16, 2011, charging fourteen Defendants with one count of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine. Superseding Indictment at 2-3. The Superseding Indictment alleges the Defendants engaged in the conspiracy from about January 2009 until at least April 26, 2011. Id. at 2. In addition to Edwards, Bowman, and Williams, the Superseding Indictment named Robert Richards, Willie Moorer, Nathaniel Harrison, Omar Ismaeel, Earl Charles, Sean Crawford, Joseph Tolbert, William Wilson, Jr., Roscoe Minns, Tracy Brooks, and Shawn Lucas as co-Defendants and co-conspirators.
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., provides that a district court may authorize an application for interception of certain wire, oral, and/or electronic communications. 18 U.S.C. § 2518.
18 U.S.C. § 2518(3). Subsection "c" is referred to as the "necessity requirement." United States v. Carter, 449 F.3d 1287, 1292 (D.C.Cir.2006). The statute further provides specific requirements for the contents of the order granting an application under Title III, including that the order require that the interception "shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter." 18 U.S.C. § 2518(5). This "minimization requirement" obliges the Government to make reasonable efforts to minimize the interception of non-relevant conversations. Carter, 449 F.3d at 1292.
Any "aggrieved person" — that is, any person who was a party to any intercepted communication, 18 U.S.C. § 2510(11) — may move to suppress the contents of any interception under Title
United States v. Becton, 601 F.3d 588, 594 (D.C.Cir.2010) (internal quotation marks and citations omitted).
The Defendants' motions challenge the validity of the initial authorization for interception of communications to and from TT2 on January 13, 2011, and by extension all future authorizations on TT2 and TT3, but do not independently challenge the validity of any later authorizations. Defendants allege the January 13, 2011 authorization is invalid for three reasons: (1) facially, the warrant did not meet the necessity requirement for issuance of a wiretap; (2) the Government did not comply with the minimization requirement in carrying out the wiretaps; and (3) Special Agent Pak's Affidavit omitted material information, entitling the Defendants to a Franks hearing regarding the validity of the wiretap authorization. The Court finds the January 13, 2011 Affidavit met the necessity requirement for a Title III wiretap, the Defendants failed to set forth a challenge the Government's minimization efforts, and the Defendants failed to make a substantial showing that the Government omitted material information from the wiretap affidavit. Accordingly, Defendants' motions to suppress the Title III wiretaps are denied.
Defendants contend that Special Agent Pak's January 13, 2011 Affidavit failed to satisfy Title III's necessity requirement because it failed to establish that traditional investigative techniques were insufficient. "Congress created the necessity requirement to ensure that `wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.'" Carter, 449 F.3d at 1293 (quoting United States v. Kahn, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974)). Although the Court must "give close scrutiny" to contested applications and "reject[] generalized and conclusory statements that other investigative procedures would prove unsuccessful," "the statutory command was not designed to foreclose electronic surveillance until every other imaginable method of investigation has been unsuccessfully attempted." United States v. Williams, 580 F.2d 578, 588 (D.C.Cir. 1978) (internal quotation marks omitted). "[A] court may authorize the wiretap of the phone of a member of an operation if
Special Agent Pak's Affidavit indicates that neither undercover officers nor confidential sources would be successful in learning Bowman's source(s) of cocaine or the hierarchy of Bowman's organization for two reasons: (1) individuals like Bowman do not want to reveal their sources and have their customers go to the source directly for narcotics; and (2) Bowman specifically was guarded about revealing the location of his stash house(s) and other details of his operation. 1/13/11 Pak Aff. ¶ 38. Defendants challenge the Affidavit's conclusions, arguing Special Agent Pak offered no explanation as to why the undercover officer and sources could not obtain additional information, since Bowman was not "guarded" in so far as he sold crack cocaine to the undercover officer and CS-2, despite not knowing either individual. Special Agent Pak specifically averred that the undercover officer "was unable to obtain any information about Bowman's narcotics trafficking organization." Id. Moreover, the fact that Bowman was willing to sell narcotics to the undercover officer and confidential sources he barely knew does not negate Special Agent Pak's observation that Bowman kept certain information, such as the location of his stash house, from his customers. Id.
Defendant Edwards offers a new argument in his reply, stating that the fact Bowman had to travel to his stash house to obtain the narcotics during controlled purchases "shows [sic] common practice among drug dealers, who typically do not carry drugs on their persons for fear of being arrested or robbed." Def. Edwards' Reply, ECF No. [303], at 3. Even if this assertion were true, it does not establish why Bowman declined to disclose the location of his stash house to the confidential sources, arranging to sell the narcotics at a neutral location. Moreover, Defendants do not dispute that because the confidential sources were merely customers and not members of Bowman's organization, Bowman would not reveal details of the organization to them. 1/13/11 Pak Aff. ¶ 39. Defendants speculate that "neither CS1 nor the [undercover officer] ever attempted to learn more about Bowman's organization." Def. Edwards' Reply at 4. Assuming the Court was to read the Pak Affidavit in the manner suggested by Defendants, the Government was not required to pursue this course in light of the other evidence in the affidavit indicating such inquiries likely would have been unsuccessful.
For the first time in his Reply, Defendant Edwards contends the Government misled the court by failing to disclose that CS-1 was incarcerated for a period of time with Bowman, and the two actually shared a cell. If anything, this information would have bolstered the conclusion that CS-1 could not obtain additional information about Bowman's organization: despite their history, Bowman only met CS-1 in neutral locations, and would not reveal to CS-1 where the stash house was located. 1/13/11 Pak Aff. ¶ 38.; id. at ¶¶ 19, 20.
Curiously, Defendants argue that "[a]lthough CS3 was apparently incarcerated as a result of it's [sic] continued drug dealing even after it began cooperating, there is nothing in the Affidavit to indicate that CS3 could not be a further source for information to law enforcement." Def. Edwards' Mot. at 10. Special Agent Pak explained that at the time of the affidavit "CS-3 [was] incarcerated and therefore no longer in a position to proactively cooperate in the investigation." 1/13/11 Pak Aff. ¶ 38. Given CS-3's incarceration, "it would be unreasonable to require pursuit of [this] avenue[] of investigation," before resorting to a wiretap. Carter, 449 F.3d at 1293. Defendants note that CS-3 was able to obtain some insight into Bowman's operation; the Affidavit notes that Bowman purportedly informed CS-3 that Bowman typically purchases four kilograms of cocaine at a time. The Affidavit also reflects the fact that CS-3 purchased quantities of cocaine from Bowman that were significantly greater than those purchased by both CS-1 and CS-2. Compare 1/13/11 Pak Aff. ¶ 16 (indicating on multiple occasions CS-3 purchased 125 grams of cocaine from Bowman) with id. at ¶¶ 19, 22 (noting CS-1 and CS-2 purchased from Bowman 11 grams and 63 grams of narcotics respectively). The fact that Bowman was more open with a customer who purchased significantly greater quantities of cocaine does not negate the evidence in the Affidavit to indicate Bowman was guarded in his interactions with other customers, including CS-1, CS-2, and the undercover officer.
Defendants further argue that Special Agent Pak's statement that the confidential sources supplied information such as "telephone numbers, descriptions of vehicles, names, [and] addresses" calls into question Special Agent Pak's ultimate conclusion that confidential sources could not reveal the full scope of Bowman's operation. To be precise, Special Agent Pak only made this statement as to CS-1, not CS-2. 1/13/11 Pak Aff. ¶ 12, 15. But fundamentally, this statement is consistent with Special Agent Pak's description of the confidential sources' roles in arranging and performing controlled purchases of narcotics. The Affidavit indicates the confidential sources provided phone numbers for Bowman and information concerning controlled buys, none of which contradicts Special Agent Pak's conclusion that the sources could not provide any additional information regarding the conspiracy at large. The affidavit contained sufficient facts for Chief Judge Lamberth to find that confidential sources and controlled purchases could not reveal the full scope of Bowman's suspected operation, and therefore a wiretap under Title III was necessary.
Special Agent Pak explained that "[a]lthough physical surveillance has provided
In his Reply, Defendant Edwards suggests that the physical surveillance attempted in this case was inadequate because the Affidavit refers to physical surveillance only in the context of five controlled purchases of narcotics. Def. Edwards' Reply at 9. Defendant's reliance on United States v. Gonzalez, 412 F.3d 1102 (9th Cir.2005) for this proposition is misplaced. In Gonzalez, the investigators only attempted a single instance of physical surveillance before giving up, compared to five instances in this case. Id. at 1114. Through these five observations, investigators confirmed that Bowman engaged in most of his conduct indoors, while the investigators in Gonzalez could only speculate after a single, brief instance of physical surveillance. Id. Moreover, the Ninth Circuit employs a different standard for necessity than this Circuit. Compare id. at 1112 with Brown, 823 F.2d at 598. The five instances of physical surveillance, and the related factual detail regarding Bowman's operation, were sufficient to show that physical surveillance would not reveal the full scope of Bowman's operation, and wiretaps were therefore necessary. Brown, 823 F.2d at 598.
In terms of performing trash covers, Special Agent Pak explained that Bowman resided in a multi-story apartment building, which utilized a communal trash dumpster located between the building in which Bowman resided and another multi-unit apartment building, in view of apartments from both buildings and the street. 1/13/11 Pak Aff. ¶ 43. The dumpster itself was enclosed by a secure five-foot fence. Id. Thus, it would be difficult, if not impossible, for agents to search the dumpster without being detected. Id. Special Agent Pak further noted that multiple units used the dumpster, making it virtually impossible to link any trash to Defendant Bowman. Id.
The Defendants fault Special Agent Pak for failing to explain "why a trash cover could not be conducted under cover of darkness ... or whether any agents of the FBI would have trouble climbing the
The Affidavit explains that agents had not sought or executed any search warrants or issued any Grand Jury subpoenas for two primary reasons: (1) these tools would alert the coconspirators to the investigation before the full scope of the conspiracy was determined; and (2) the warrants/subpoenas would be unsuccessful in uncovering broader information regarding the conspiracy, such as stash house locations and cash flow. 1/13/11 Pak Aff. ¶¶ 44-45. Defendants contend that "[t]here is nothing in this section that indicates why any of these specific investigative techniques would not be fruitful in this investigation." Def. Edwards' Mot. at 13. To the contrary, Special Agent Pak explained that although a search of Bowman's residence would likely confirm the agents' suspicions that it served as a stash house, a search would be unlikely to reveal additional stash locations, the identity of co-conspirators, or the full scope of the conspiracy. 1/13/11 Pak Aff. ¶ 44. Likewise, the Affidavit noted that the Government did not have sufficient information regarding Bowman's drug trafficking organization to effectively issue targeted subpoenas for financial records. Id. at ¶ 45. The application for the initial wiretap for TT2 offered specific reasons as to why search warrants and Grand Jury subpoenas would be ineffective to reveal the full scope of the conspiracy in this case, and therefore satisfied the Title III necessity requirement on this front.
The Affidavit asserted that call detail records and pen registers were useful to some extent, but would not satisfy the Government's burden of proof at trial because the registers alone provide no information regarding the content of the conversations taking place. 1/13/11 Pak Aff. ¶ 47. In terms of call detail records and pen registers, the Defendants are correct that the Affidavit provides only "boilerplate assertions" in the relevant paragraph. However, "[s]ections of an affidavit framed in conclusory terminology" cannot be separated from "preceding detailed descriptions" of investigative efforts. United States v. Sobamowo, 892 F.2d 90, 93 (D.C.Cir.1989). Special Agent Pak's Affidavit indicates that using pen registers, agents were able to establish a usage pattern on TT2 of "a larger number of calls to a limited number of phone numbers, and calls of a short duration," typical of narcotics trafficking. 1/13/11 Pak Aff. ¶ 32. Furthermore, call records established that TT2 contacted or attempted to contact suspected co-conspirators Colter and Ismaeel. Id. at ¶¶ 33-34. The use of pen registers in this case, and the inherent nature of pen registers (as described by Special Agent Pak) logically lead to the ultimate conclusion offered in the Affidavit that pen registers are "useful mainly in establishing relationships and patterns of operations," but "provide little direct evidence as to the significance of the telephone calls." Id. at ¶ 47.
In addition to disputing the effectiveness of individual investigative methods, Defendants contend that wiretap interceptions were not necessary because the combination of traditional tools employed by investigators were sufficient. E.g., Def. Edwards' Mot. at 12. Defendants correctly note that the combination of pen registers, physical surveillance, and confidential sources enabled the investigators to arrange and observe controlled buys of narcotics from Bowman. However, even in combination the information gathered provided limited insight into the conspiracy. The Government was unable to determine, among other things, where in his apartment building Bowman stored the narcotics, 1/13/11 Pak Aff. ¶ 40, the location of other stash houses, id. at ¶ 40, or where assets and proceeds related to the conspiracy were held, id. at ¶ 45. That combining techniques provided relevant information does not mean investigators were foreclosed from using wiretaps to determine the full extent of the conspiracy. Becton, 601 F.3d at 596. Defendants harp on the fact that many of the limitations identified by Special Agent Pak are common issues in law enforcement investigations. The fact that officers might run into similar barriers in other investigations has no bearing on whether or not Special Agent Pak provided an adequate factual basis to show those barriers were present in this investigation. Ultimately, the Pak Affidavit provided sufficient facts to support Chief Judge Lamberth's determination that the necessity requirement had been met, and thus the initial wiretap on TT2 was properly authorized. Sobamowo, 892 F.2d at 93.
In his motion to suppress, Defendant Edwards challenged the Government to "make a prima facie showing that minimization was complied with respecting conversations between Edwards and others." Def. Edwards' Mot. at 22. Defendant's request reverses the order of proof required in the context of minimization challenges.
Carter, 449 F.3d at 1295 (quoting United States v. Anderson, 39 F.3d 331, 342 (D.C.Cir.1994)). The Government is not required to make any showing regarding its minimization efforts unless and until the Defendants identify "any conversation or pattern of conversations by which the [Court] could determine whether or not
Defendants argue that Special Agent Pak knowingly and intentionally, or with reckless disregard for the truth, omitted material information from the Affidavit. An affidavit filed in support of an application for a Title III wiretap is presumptively valid. United States v. Maynard, 615 F.3d 544, 550 (D.C.Cir.2010). However,
Franks, 438 U.S. at 155-56, 98 S.Ct. 2674. This test applies to material omissions from affidavits as well as false statements. United States v. Johnson, 696 F.2d 115, 118 n. 21 (D.C.Cir.1982). An omission is "material" only if its "`inclusion in the affidavit would defeat probable case.'" United States v. Spencer, 530 F.3d 1003, 1007 (D.C.Cir.2008) (quoting United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990)). The Defendants must make a substantial showing that is "more than conclusory" and "accompanied by an offer of proof." United States v. Gaston, 357 F.3d 77, 80 (D.C.Cir.2004).
Defendants identify several prior "investigations" of Edwards and Bowman that, according to Defendants, belie the stated intention of the wiretap, that is, to gain information regarding Bowman's sources and co-conspirators, their roles/relationships, and methods of packaging and distribution. Def. Edwards' Mot. at 15-16. The Defendants identify the following investigations as relevant:
The parties devote a great deal of effort to discussing particular facts about each investigation. The Defendants in particular lose the forest for the trees: the stated purpose of the wiretap application was to develop information regarding Bowman's operation, including sources, co-conspirators, and methods of distribution. To the extent the Government had knowledge of Edwards' illicit activities, Defendant Edwards does not show (or even attempt to show) that this information satisfied the objectives regarding Bowman as stated in the Affidavit. See 1/13/11 Pak Aff. ¶ 9b. Defendants claim that "the government deftly portrayed Bowman, a known associate of Edwards', as the initial target of the investigation," but offer no basis for the Court to ignore the stated intention of the wiretap: to intercept communications from Bowman's telephone in order to gain information about Bowman's drug trafficking operation. Id. at ¶¶ 7, 9b. The Government's suspicion that Edwards supplied Bowman with narcotics does not undermine the Government's representation that the purpose of the investigation was to discover the scope of Bowman's narcotics-related activity.
Defendants generally allege that the early investigations "reveal[] a pattern that federal law enforcement was accumulating information about Edwards and, by extension, his associates," but this conclusory statement falls far short of a substantial showing that the Government withheld material information regarding the scope of its knowledge of Bowman's drug trafficking organization in seeking to intercept wireless communications with Bowman. Defendants provide no explanation for the Government's purported knowledge of the roles and relationships of Bowman's co-conspirators, methods of packaging and distribution, nature and scope of the conspiracy, financing and use of proceeds, or numerous other aspects of the investigation. Assuming Defendants could show the Government knew Edwards supplied Bowman with narcotics and that Edwards was Bowman's only supplier, there remain a number of significant aspects of Bowman's operation that the Government lacked information on. 1/13/11 Pak Aff. ¶ 9b(i)-(iii), (v)-(xiii). Negating a single purpose of the wiretap does defeat the necessity finding for the entire wiretap authorization. United States v. Reed, 575 F.3d 900, 911 (9th Cir.2009) ("[T]he necessity requirement is directed to the objective of the investigation as a whole.").
The lack of materiality is particularly striking with regards to the investigations of Edwards between 2001 on 2007, during which time Bowman was incarcerated. Gov't Resp. at 18. Defendants provide no explanation as to how investigation of Edwards' conduct during this time frame is material to the Government's knowledge of Bowman's alleged drug trafficking, which did not begin (or resume) until at least 2008. Defendants' assertion regarding the materiality of the 2008 investigation of Terrence Jones takes speculation to a whole new level. Several basic facts are undisputed: (1) in 2008, agents executed a search warrant of the residence occupied by Jones and Richards; (2) neither Jones nor Richards were charged in connection to the drugs recovered during the search; and (3) later in 2008, Jones was arrested on narcotics charges, which led to his incarceration beginning in 2010. From this, Defendants allege that the investigation of Bowman "was a continuation of the Jones investigation." Def. Edwards' Reply at 17. Defendants' only support for this assertion is that Jones' telephone number was intercepted on Bowman's pen register (though Defendants do not disclose how many
The only offer of proof submitted by the Defendants demonstrating any sort of connection between prior investigations and Defendant Bowman is the affidavit submitted by Katrina Belton. Ms. Belton's submission indicates that in "2008 or 2009" she was subpoenaed to appear before a Grand Jury in Greenbelt, Maryland. Belton Decl., ECF No. [303-2], ¶ 3. Ms. Belton indicates she was questioned "about Mr. Edwards and his associates," and shown pictures of Mr. Edwards, Bowman, Jones, Richards, James Parker, and Earl Davis. Id. at ¶ 4. Ms. Belton states that "[f]rom the questions being asked, it was obvious to me that the agents and officers already knew a great deal of information about Mr. Edwards and his associates," but offers no further insight into her discussions with the authorities. Id. At best, Defendants make a substantial showing that as of January 2011, the Government knew Edwards and Bowman were associates, but this in and of itself would not defeat the finding of necessity or probable cause.
For his part, Defendant Bowman focuses on the fact the Government omitted from the January 13, 2011 affidavit any discussion of the volume of calls between TT3 and Edwards, Richards, and Moorer.
Defendant Bowman also emphasizes information purportedly provided by CS-4, referenced by the Government for the first time in the March 19, 2011 affidavit in support of the first application for a wiretap interception on TT3. 3/21/11 Pak Aff. ¶ 21. The affidavit indicates that CS-4 has provided information to law enforcement agents for at least 10 years, has known
Similarly, Defendant Edwards argues — yet again, for the first time in his Reply — that "Agent Pak's introduction of CS4 in the March 19 Affidavit is extremely misleading because it gave the issuing courts the false impression that law enforcement learned of the illicit relationship between Bowman, Edwards, and Richards from CS4." Def. Edwards' Reply at 7. The Court notes that Defendant Bowman's argument regarding CS-4 in fact implies that the Government did learn about this "illicit relationship" from CS-4. In any case, the Defendants fail to articulate how this representation was material to the finding of probable cause or necessity in January or March 2011. The omission of a cooperating source does not, without more, invalidate a warrant that otherwise establishes probable cause and the necessity of interceptions. Becton, 601 F.3d at 597. Absent evidence CS-4 provided the Government with information that would overcome the probable cause or necessity showings in Special Agent Pak's Affidavit(s), the omission of CS-4 from the January 13, 2011 wiretap application was immaterial.
Defendants finally argue that the specific methods employed by agents during the earlier investigations demonstrate traditional tools were adequate to achieve the objective of the investigation. Initially, it is important to note that none of the traditional investigative techniques referenced by the Defendants as part of this argument were employed against Bowman, and therefore do not disturb the finding that such techniques would not reveal the full scope of Bowman's drug trafficking organization. Additionally, these prior investigations reinforce the conclusion that such techniques could reveal the full scope of Bowman's organization, rather than undermine such a conclusion.
For the reasons stated above, the Court finds the Title 3 wiretap interceptions employed in this case were properly authorized. The Affidavit submitted by FBI Special Agent Timothy Pak in support of the wiretap applications provided sufficient factual detail of this particular investigation to support a finding that traditional investigatory techniques were inadequate to reveal the full scope of Defendant Bowman's alleged drug trafficking conspiracy, satisfying the "necessity requirement" for obtaining a wiretap. The Defendants failed to identify any non-relevant conversations intercepted as part of the wiretaps, therefore the Court need not examine the Government's minimization efforts. The prior investigations of Defendant Edwards and his "associates," if included in the affidavit, would not have undermined the stated purpose for the wiretap. Finally, information regarding the prior investigative techniques would not have altered the finding of necessity. Since the omitted investigations were not material to the finding of probable cause to issue the wiretaps, the Defendants are not entitled to a Franks hearing on their challenge to the facially valid affidavit. Accordingly, Defendant Edwards' [247] Motion to Amend Motion to Suppress Evidence Obtained from Interception of Wire Communications is GRANTED; Defendant Edwards' [241], [242], [244], and Defendant Bowman's [248], [252], [253], [256], and [257] motions in limine are DENIED. An appropriate Order accompanies this Memorandum Opinion.
Presently before the Court is Defendant Gezo Edwards' [390] Motion to Reconsider Denial of Motion to Suppress Evidence Obtained from Interception of Wire Communications. The Court previously denied Defendant Edwards's [244] Motion to Suppress Evidence Obtained from Interception of Wire Communications and Seizure of Electronic Communications, which sought to suppress evidence obtained pursuant to a court-ordered wiretap interception of three cellular telephones purportedly operated by Defendant William Bowman. 7/26/12 Order, ECF No. [353]; 7/26/12 Mem. Opin., ECF No. [354].
The Court detailed the factual history relevant to Defendant Edwards' motion at length in its Memorandum Opinion denying Edwards' initial motion, 7/26/12 Mem. Opin. at 2-6, and incorporates herein that opinion in full. In short, as part of its investigation of the charged conspiracy, the Government obtained orders authorizing the interception of wire communications to and from three cellular telephones allegedly operated by Defendant Bowman, referred to as "TT1," "TT2," and "TT3." Id. at 2-4. The Government obtained the relevant authorizations for TT2 on January 13, February 11, March 11, and April 8, 2011. Id. at 4-5. The affidavit filed in support of the applications, signed by FBI Special Agent Timothy S. Pak, did not disclose Defendant Edwards as a possible target of the interception until the April 8, 2011 application. Id. at 5. The Government obtained authorizations for TT3 on March 19 and April 15, 2011. Defendant Edwards was disclosed as a possible target of the TT3 interception in both applications. Id. All three defendants are charged with conspiracy to distribute and possess with intent to distribute five kilograms or more cocaine. Superseding Indictment, ECF No. [28], at 2-3. Defendants Edwards and Bowman face a number of additional narcotics distribution and/or weapons charges. Id. at 3-7.
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., provides that a district court may authorize an application for interception of certain wire, oral, and/or electronic communications. 18 U.S.C. § 2518. Section 2518(1) sets forth the requirements for applications seeking Title III authorizations, and provides that applications must include, among other information:
18 U.S.C. § 2518(1)(b), (e). Defendant Edwards, as an "aggrieved person," see 18 U.S.C. § 2510(11), moves to suppress the contents of the interceptions on the basis that the communications were "unlawfully intercepted." 18 U.S.C. § 2518(10)(a).
Although styled as a motion to reconsider, Defendant Edwards' motion is more accurately characterized as a renewed motion to suppress insofar as it raises new arguments to support his contention, as opposed to identifying new factual information or errors in the Court's previous decision. The Court agrees with the Government that the Defendant could and should have raised these arguments in the context of his initial motion, and thus the motion to reconsider is untimely under the Court's schedule for pretrial motions. However, the Court declines to deny Defendant's motion outright on this basis. All of the parties in this case, including the
The Defendant does not take issue with the Court's previous findings that (1) the affidavits filed in support of the Title III applications in this case met the "necessity requirement" articulated in Section 2518; (2) the affidavits did not omit any material information; and (3) the Government complied with the statutory "minimization requirement" in carrying out the authorized interceptions. Def.'s Mot. at 2 n.1. Instead, the Defendant argues that the TT2 applications submitted on January 13, February 11, and March 11 failed to meet the statutory requirements found in Section 2518(1)(b)(iv) and (e) because they (1) failed to disclose Defendant Edwards as a possible target of the interception; and (2) failed to disclose previous authorizations for interceptions involving Defendant Edwards. The Defendant also for the first time responds to the Government's contention that the good faith exception to the exclusionary rule would apply in the event the Court finds the interceptions at issue were unlawful. For the reasons explained below, the Court finds the Government was not required to disclose Defendant Edwards as a possible target, nor was it obligated to disclose previous authorizations for interceptions concerning Defendant Edwards. Accordingly, the Court does not reach the parties' arguments regarding the good faith exception.
The Defendant initially argues that pursuant to Section 2518(1)(b)(iv), the Government should have disclosed Defendant Edwards as a person "committing the offense and whose communications are to be intercepted" at the very least in the March 2011 application for TT2. The Supreme Court interpreted this section to require that a wiretap application name an individual if the Government (1) "has probable cause to believe that the individual is engaged in the criminal activity under investigation"; and (2) "expects to intercept the individual's conversations over the target telephone." United States v. Donovan, 429 U.S. 413, 428, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977). The Donovan court further held that a violation of Section 2518(1)(b)(iv) is not a basis for suppressing the intercepted communications. Id. at 439-440, 97 S.Ct. 658. As such, the Defendant's success on this argument alone would not justify granting the Defendant's motion. However, because the Defendant's second basis for reconsideration is dependent on the Government's obligations under Section 2518(1)(b)(iv), the Court considers the substance of the Defendant's argument.
Echoing the theme of his initial motion, Defendant Edwards contends that the Government had but did not divulge extensive knowledge of Defendant Edwards' involvement with Defendant Bowman before the March 11, 2011 application for renewal of the TT2 wiretap. Specifically, the Defendant argues that:
Def.'s Mot. at 6. Contrary to Defendant's assertion, the Court never found "(a)" to be true; rather, the Court noted that "[a]t best," the Defendant "ma[d]e a substantial showing that as of January 2011, the Government knew Edwards and Bowman were associates." 7/26/12 Mem. Opin. at 22. Assuming arguendo that the above information accurately reflects the Government's knowledge, it at best establishes that as of March 11, 2011 the Government had probable cause to believe Edwards was engaged in the criminal activity under investigation.
Neither party directly addressed the level of certainty required before the Government can be said to "expect" that an individual's conversations will be intercepted over a target telephone, but the consensus amongst the Court of Appeals is that the Government is not required to disclose a target unless the Government has probable cause to believe that an individual's conversations will be intercepted over the target telephone. United States v. Bennett, 825 F.Supp. 1512, 1522-23 (D.Colo.1993) (collecting cases). The Defendant's motion falls far short of demonstrating the Government had probable cause to believe Defendant Edwards' conversations would be intercepted over TT2. Despite numerous opportunities to do so, the Defendant has never contested the Government's assertion that "the pen register on TT2 did not show any calls between Bowman and telephone numbers known or believed to be associated with Edwards." Gov't's Omnibus Resp., ECF No. [290], at 23 n.14. By contrast, pen register data reflected hundreds of activations between Defendant Edwards and Defendant Bowman on TT3 beginning at least in January 2010. Id.; 3/19/11 Aff. of T. Pak, ¶ 23. To the extent the Government knew Defendants Bowman and Edwards were "associates" involved in the criminal activity under investigation, there is nothing in the record before the Court to indicate the Government should have expected Edwards to suddenly communicate with Bowman via TT2, as opposed to TT3.
The only argument Defendant Edwards offers with regards to the second requirement articulated in Donovan is buried in a footnote in the Defendant's motion, in which the Defendant asserts that
Def.'s Mot. at 6 n.4. The Court does not read the affidavit to indicate the Government can use the target telephone as a remote listening device capable of intercepting conversations when the telephone itself is not in use. Rather, what that affidavit reflects is that during the course of a conversation taking place over a target telephone, agents may overhear conversations taking place in proximity to, but not through, one of the telephones involved in the activation. The relevant question then is whether the Government should have expected to intercept Defendant Edwards' conversations to the extent they took place in proximity to, but not through, a telephone involved in a call with TT2.
By Defendant Edwards' own argument, the Government did not know Defendants Edwards and Bowman were involved in narcotics trafficking together until "late February 2011." Def.'s Mot. at 6. Assuming this were true, the Defendant offers no evidence to show the Government had probable cause to believe that as of March 11, 2011, Defendants Edwards and Bowman met in person often enough that Edwards would be intercepted as part of "background conversations" taking place in proximity to an activation involving TT2. The Defendant believes that it "is not far[-]fetched to infer that [the Government] also knew that Edwards would be intercepted in background conversations near Bowman's telephone," Def.'s Mot. at 6 n.4, but the Defendant's inference does not amount to probable cause. The Defendant fails to provide any evidence from which the Court could find the Government expected to intercept Defendant Edwards' conversations over TT2. Therefore, the Government was not required to disclose Edwards as a possible target prior to the April 8, 2011 application for TT2.
The Defendant also argues that the Government violated the requirements of Section 2518(1) by failing to disclose in the renewal applications for TT2 two applications for authorization of interceptions obtained with respect to Defendant Edwards in 2007. Section 2518(1)(e) requires Title III applications to include "all previous applications" for approval of interceptions "involving any of the same persons, facilities or places specified in the application." As articulated above, the Government did not err in omitting Defendant Edwards from the January, February, and March applications for TT2. At the point the Government did not need to name Edwards in the application, under the plain language of Section 2518(1)(e), it was under no obligation to disclose prior applications involving Defendant Edwards.
The Defendant contends that this conclusion "eviscerate[s] the express language and intent of the statute because the government could simply not list someone to avoid having to disclose prior applications relating to that person." Def.'s Mot. at 7 n.5. Defendant's concern is unwarranted. Pursuant to Donovan, the Government does not have unfettered discretion to decide which individuals to disclose as targets of a proposed interception. If the Government must name a target per the standard set forth in Donovan, the plain language of Section 2518(1)(e) requires the Government to identify all prior applications involving that individual. Conversely, as is the case here, if the Government is not required to disclose an individual as a possible target, Section 2518(1)(e) does not require the Government to disclose prior applications involving that individual. The Government was not obliged to disclose
For the reasons stated above, the Court finds no basis on which to suppress the evidence obtained from interceptions of wireless communications from cellular telephones purportedly operated by Defendant Bowman. Even if the Court were to assume the Government had probable cause to believe that Defendant Edwards was engaged in the criminal activity under investigation before March 19, 2011, the Defendant failed to show the Government expected Defendant Edwards' conversations to be intercepted over TT2. Therefore, the Government was not obligated to disclose Edwards as a possible target of the interception. Moreover, at the point the Government was not required to identify Edwards as a potential target of the interception, the Government was likewise not required to disclose prior applications for interceptions concerning Defendant Edwards. Thus, the Government's applications for interceptions of cellular telephones allegedly operated by Defendant Bowman met the statutory requirements. Absent any violation of the statutory requirements, Defendant Gezo Edwards' [390] Motion to Reconsider Denial of Motion to Suppress Evidence Obtained from Interception of Wire Communications is DENIED and the Court does not reach the parties' arguments regarding the applicability of the good faith exception to Title III wiretaps.
An appropriate Order accompanies this Memorandum Opinion.
Defendant Gezo Edwards is charged by superseding indictment with one count of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, and one count of carrying a firearm during and in relation to or possessing a firearm in furtherance of a drug trafficking offense. Much of the evidence the Government seeks to present against Edwards at trial was derived — directly or indirectly — from court-authorized wiretaps of two telephones associated with Edwards' co-Defendant William Bowman. For the third time, Edwards asks the Court to suppress the wiretap as illegally obtained, specifically for failing to disclose Edwards as a possible target of the interceptions until the third renewal of the wiretap. Upon consideration of the pleadings,
The Court detailed the factual history relevant to Defendant Edwards' motion at length in its prior Memorandum Opinion denying Edwards' motion regarding the wiretap, 7/26/12 and 9/16/12 Mem. Opins., ECF Nos. [354, 432], and incorporates herein those opinions in full. In short, the three remaining co-Defendants, Edwards, Bowman, and Henry Williams, are charged with conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine. Superseding Indictment, ECF No. [28], at 2-3. Defendants Edwards and Bowman also each face one count of carrying a firearm during and in relation to or possessing a firearm in furtherance of a drug trafficking offense. Id. 6-7.
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., provides that a district court may authorize an application for interception of certain wire, oral, and/or electronic communications. 18 U.S.C. § 2518. Defendant Edwards, as an "aggrieved person," see 18 U.S.C. § 2510(11), moves to suppress the contents of the interceptions on the basis that the communications were "unlawfully intercepted." 18 U.S.C. § 2518(10)(a). Section 2518(1) sets forth the requirements for applications seeking Title III authorizations, and provides that applications must include, among other information:
18 U.S.C. § 2518(1)(b) ("Subsection b"). Subsection b requires the Government to name an individual as a possible target of a wiretap if the Government (1) "has probable cause to believe that the individual is engaged in the criminal activity under investigation"; and (2) "expects to intercept the individual's conversations over the target telephone." United States v. Donovan, 429 U.S. 413, 428, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977).
The Defendant's present motion asks the Court to reconsider its denial of Edwards' previous motion to dismiss on the grounds that "newly discovered facts" demonstrate that, as of March 11, 2011, the Government had probable cause to believe it would intercept Defendant Edwards' conversations in the background of wire communications intercepted over TT2. The "new facts" identified by Defendant Edwards, viewed in the light most favorable to the Defendant, do not justify granting the Defendant's motion. Although the Government may have been generally obligated to disclose the identity of any person who met the Donovan criteria but whose conversations would only be intercepted in the background of the wiretap, the record does not indicate the Government had probable cause as of March 11 to believe it would intercept Defendant Edwards' conversations in the background of TT2 activations. Moreover, Defendant Edwards' motion cannot succeed as the Supreme Court indicated in Donovan that any error in this regard by the Government would not be a basis for suppressing the wiretap.
In response to the Court's inquiry, the Government indicated in its opposition that it was unable to find any legal authority to support the position that it was required to "list a person as a target in a Title III application where the person otherwise meets the requirements under Donovan, but whose conversations would only be overheard in the background during intercepted wire communications." Gov't's Opp'n ¶ 2. The Court likewise was unable to locate any direct legal authority on this point. Much of the case law concerning background conversations concerns the legality of the use of such conversations if the interception of background conversations was not specifically authorized by the order authorizing the wiretap. E.g., United States v. Baranek, 903 F.2d 1068, 1071-72 (6th Cir.1990) (finding use of information obtained from the interception of background conversations, although not explicitly authorized by the wiretap order, was permissible pursuant to the "plain view" doctrine); United States v. Couser, 732 F.2d 1207, 1209-10 (4th Cir.1984) (holding the interception of background conversations, even if not permitted on the face of the wiretap order, was not a basis for suppressing the wiretap). However, the plain language of Subsection b — requiring the disclosure of "the identity of the person, if known, committing the offense and whose communications are to be intercepted" — would appear to encompass all communications recorded as a result of the wiretap, regardless of the whether the conversation took place over, or merely in the vicinity of, the target telephone. The Donovan Court specifically referenced conversations that would be intercepted "over the target telephone," 429 U.S. at 428, 97 S.Ct. 658, but there is nothing to indicate that the Donovan Court considered,
Before addressing the purportedly new facts the Defendant includes in his motion, the Court notes that the Defendant misconstrues one aspect of the Court's September 16, 2012 Memorandum Opinion. Contrary to the Defendant's assertion, the Court did not find that the Government was required to disclose Edwards as a possible target in the April 8, 2011 application for renewal of the wiretap as to TT2. The Court explicitly found that "the Government was not required to disclose Edwards as a possible target prior to the April 8, 2011 application for TT2," but made no findings as to the April 8 application because the issue is irrelevant: the Government in fact named Edwards as a target in the April 8 application concerning TT2. Not only was the issue irrelevant, neither party presented evidence as to the Government's knowledge as of April 8 such that the Court could draw such a conclusion. Section III.A. of the Court's September 16, 2012 Memorandum Opinion held only that the Government was not required to disclose Edwards as a target in the January, February, or March applications for authorization of wiretap interceptions over TT2. Accordingly, the Court does not address any of the factual claims Defendant Edwards makes regarding events that occurred after March 11, 2011.
The crux of the Defendant's argument is that, as of March 11, 2011, the Government had sufficient evidence to show probable cause that Edwards' was engaged in drug trafficking with Bowman, and Edwards' conversations would be intercepted in the background of TT2. For purposes of this motion, the Court assumes, but does not decide, that Edwards' first contention is correct. As to his second argument, at best, the evidence in the record cited by the Defendant demonstrates the following:
The Defendant also alleges the Government had access to his Facebook account, which included pictures showing Edwards and Bowman at social events together, including Edwards' childrens' birthday parties. Def.'s Ex. 9 (Aff. of Damion Halliburton). Taken together, the evidence cited by Edwards is insufficient to show the Government should have disclosed Edwards as a possible target.
The Defendant's motion implicitly and explicitly requires the Court to make a number of assumptions to draw the conclusion the Defendant urges. The Defendant would have the Court assume Edwards and Bowman met face to face on all occasions on which GPS data places TT2 within the vicinity of an address associated with Edwards, and that Edwards was in fact in the vicinity of TT2 at the time calls were attempted or completed. Drawing all of the inferences and making all of the assumptions the Defendant requests, the Court could only conclude that the Government had evidence that Defendants Edwards and Bowman were in the same place at the same time on three dates in the month prior to the March 11 application for TT2. Moreover, the Defendant has only identified a single date on which Defendant Bowman may have used TT2 while in the presence of Edwards. Regardless of the Government's knowledge of Bowman and Edwards' relationship generally, during the month prior to the reauthorization at issue, the Government had no evidence to indicate regular in-person meetings between Edwards and Bowman during which Bowman had possession of TT2.
In its opposition, the Government notes that the Defendant failed to identify a single instances in which Edwards' background conversation was intercepted during the first two months of the wiretap of TT2. Gov't's Opp'n ¶ 6. The Defendant contends that this argument is essentially hindsight bias, and is irrelevant to the question of whether the Government should have expected to intercept such conversations as of March 11. Def.'s Reply ¶ 8. The evidence discussed by the parties fall into two categories: (1) information available to the Government before it sought re-authorization for the TT2 wiretap on March 11; and (2) information
However, the evidence available to the Government prior to March 11 is directly relevant to the question of what or who the Government should have disclosed as part of the March 11 application. In particular, evidence of what the Government obtained, or did not obtain, from the wiretap of TT2 pursuant to the first two authorizations would strongly inform what the Government could and should have expected from the third authorization, which is sought on March 11. At this point in time, the Defendant has not identified as single activation of TT2 between January 13 and March 11 that intercepted a conversation with Defendant Edwards. Even imputing perfect knowledge of all intercepted conversations to the Government, there is nothing in the record to indicate that prior to March 11, the Government actually intercepted over TT2 any direct or background conversation involving Defendant Edwards. Thus, in drafting the March 11 application concerning TT2, the Government had to weigh evidence of three meetings between Edwards and Bowman, including two during which Bowman may have had TT2 on his person, compared to nearly two months of recorded interceptions over TT2, none of which involved Defendant Edwards. On this record, the Government had no reason to believe Edwards' conversations would be suddenly intercepted over TT2 after March 11, and therefore was not required to disclose Edwards as a possible target of the TT2 wiretap.
The Defendant argues that based on how often he and Defendant Bowman met in-person, the Government should have "inferred" that at some point his background conversations would be intercepted over TT2. It was reasonable for the Government not to make such an inference given the circumstances of the investigation. First, although the Defendant cites evidence indicating the Government knew of Edwards' association with Bowman as early as January of 2010, the amount of face-to-face interaction two individuals may engage in naturally may vary over time. In the two months preceding the March 11 wiretap application, the evidence available to the Government indicated only limited face-to-face interactions between Edwards and Bowman. Second, the Government was aware that Defendant Bowman used certain telephones to communicate with certain individuals. Even if the Government should have inferred Edwards would have been intercepted in the background of a telephone carried by Defendant Bowman, there is nothing to suggest the Government could or should have inferred that telephone would be TT2. For the same reason, the Defendant's claim that "there is more than a fair probability that known drug associates meet often to conduct their business," did not compel the Government to disclose Edwards as a target; even if true as a general principle, the evidence available to the Government indicated Edwards and Bowman did not meet often to conduct their business, or do so in the vicinity of TT2. The Defendant's argument would derive probable cause from a combination of disproven behavioral assumptions and random chance, evidence far short of what Donovan requires.
For the reasons stated above, the Court once again declines to suppress the wiretap of TT2 and related evidence. Drawing all reasonable inferences in favor of Defendant Edwards, the Defendant demonstrated only that the Government knew Defendants Edwards and Bowman met in-person on three occasions prior to the March 11 request to re-authorize the wiretap on TT2. GPS data indicates Bowman may have had TT2 on his person during these meetings, and on one occasion at least two calls or attempted calls were made to/from TT2 while Bowman was in the vicinity of an address associated with Defendant Edwards. Pursuant to the first two orders authorizing interception of wire communications over TT2 issued on January 13 and February 11, the Government did not intercept any conversations (background or otherwise) in which Defendant Edwards took part. This reinforces the conclusion that the Government lacked probable cause to believe that as of March 11, the Defendant Edwards' conversations suddenly would be intercepted over TT2. The Government's knowledge of Edwards and Bowman's association was not, in and of itself, sufficient evidence to require the Government to disclose Edwards as a possible target of the TT2 wiretap on March 11, 2011. In any case, the Court is bound by the Supreme Court's decision in Donovan that even if the Government's omission of Edwards from the March 11 application regarding TT2 was in error, the Court cannot suppress the wiretap on that basis. Therefore, Defendant Edwards' [515] Motion for Leave to File Defendant's Pro Se Motion is GRANTED, and Edwards' [515-2] Pro Se Motion to Reconsider Denial of Motion to Reconsider Denial of Motion to Suppress Evidence Obtained from Interception of Wire Communications in Light of New Evidence is DENIED.
An appropriate Order accompanies this Memorandum Opinion.
