United States v. Edwards , 994 F. Supp. 2d 1 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v.
Criminal No. 11-129-1 (CKK)
GEZO GOEONG EDWARDS,
Defendant.
MEMORANDUM OPINION
(October 11, 2013)
Presently before the Court are several pro se, post-trial motions filed by Defendant Gezo
Edwards. The Defendant seeks reconsideration of the Court’s May 7, 2013 Memorandum
Opinion and Order denying the Defendant’s pro se motion for a new trial. The present motions
for reconsideration, and the five supplemental memoranda filed by the Defendant, constitute the
Defendant’s fourth pro se (and sixth overall) attempt to suppress evidence obtained from a
wiretap on co-Defendant William Bowman’s cellular telephone.1 Upon consideration of the
pleadings,2 the relevant legal authorities, and the record as a whole, the Court once again finds
no basis for granting the requested relief. Accordingly, the Defendant’s [767] Motion for
Reconsideration, [768] Supplemental Motion for Reconsideration, and [797] Motion to Treat
Motions to Reconsider as Conceded are DENIED.
1
United States v. Edwards (“Edwards I”), 889 F. Supp. 2d 1 (D.D.C. 2012); 9/16/12
Mem. Op. & Order, ECF Nos. [431, 432]; 10/23/12 Mem. Op. & Order, ECF Nos. [523, 524];
United States v. Edwards (“Edwards IV”), 904 F. Supp. 2d 7 (D.D.C. 2012); United States v.
Edwards, --- F. Supp. 2d ---, 2013 WL 1881552 (D.D.C. May 7, 2013).
2
Def.’s Second Request to Reconsider Denial of Pro Se Mot. for New Trial (“Def.’s
Mot.”), ECF No. [767]; Def.’s Suppl. for Second Request to Reconsider (“Def.’s Suppl. Mot.”),
ECF No. [768]; Def.’s First Suppl., ECF No. [775]; Gov’t’s Opp’n, ECF No. [776]; Def.’s
Reply, ECF No. [780]; Def.’s Second Suppl., ECF No. [794]; Def.’s Third Suppl., ECF No.
[795]; Def.’s Fourth Suppl., ECF No. [796]; Def.’s Mot. to Treat Mots. as Conceded, ECF No.
[797]; Gov’t’s Suppl. Opp’n, ECF No. [798].
I. BACKGROUND
The Court detailed the factual history relevant to Defendant Edwards’ motion at length in
its July 26, 2012 Memorandum Opinion denying Edwards’ initial motion and subsequent
opinions, and incorporates herein those opinions in full. In short, as part of its investigation of a
drug trafficking conspiracy, the Government obtained orders authorizing the interception of wire
communications to and from three cellular telephones allegedly operated by co-Defendant
William Bowman, referred to as “TT1,” “TT2,” and “TT3.” Edwards I, 889 F. Supp. 2d at 5-6.
The Government obtained the relevant authorizations for TT2 on January 13, February 11,
March 11, and April 8, 2011. Id. 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 TT2 interception until the April 8, 2011 application. Id. at 6. The Government obtained
authorizations for TT3 on March 19 and April 15, 2011. Id. Defendant Edwards was disclosed
as a possible target of the TT3 interception in both applications. Id.
Defendant Edwards and thirteen co-Defendants were 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 was also charged with using, carrying,
and possessing a firearm during a drug trafficking offense. Id. at 6. Defendant Edwards and two
co-Defendants, William Bowman and Henry Williams, proceeded to trial. Defendants Edwards
and Bowman were convicted of conspiracy to distribute and possess with intent to distribute five
kilograms or more of cocaine, while Defendant Williams was convicted of the lesser included
offense of conspiracy to distribute and possess with intent to distribute less than five hundred
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grams of cocaine.3 Verdict Forms, ECF Nos. [651, 653, 655].
II. LEGAL STANDARD
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:
(b) a full and complete statement of the facts and circumstances relied upon
by the applicant, to justify his belief that an order should be issued,
including . . . (iv) the identity of the person, if known, committing the
offense and whose communications are to be intercepted;
(c) a full and complete statement as to whether or not other investigative
procedures have been tried and failed or why they reasonably appear to be
unlikely to succeed if tried or to be too dangerous; [and]
(e) a full and complete statement of the facts concerning all previous
applications known to the individual authorizing and making the
application, made to any judge for authorization to intercept, or for
approval of interceptions of, wire, oral, or electronic communications
involving any of the same persons, facilities or places specified in the
application, and the action taken by the judge on each such application[.]
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).
III. DISCUSSION
As a threshold matter, the Court declines the Defendant’s invitation to make legal
3
Defendant Bowman was also convicted of three counts of distribution of a mixture and
substance containing a detectable amount of cocaine, and one count of carrying and possessing a
firearm during a drug trafficking offense. Verdict Form, ECF No. [653]. Defendant Edwards
was acquitted of the charge of carrying and possessing a firearm during a drug trafficking
offense. Verdict Form, ECF No. [651].
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arguments on his behalf. See Def.’s Mot. at 3 (“Edwards would reassert his request that the
Court make ‘any other legal grounds for suppression which a lay person such as Edwards would
not deduce or fathom[.]’”). Although the Defendant is represented by counsel in this case, the
Court is cognizant of Defendant Edwards pro se status with respect to the present motions. But
the Court is an arbiter of the arguments offered by the parties, not an advocate for either side.
Nor does the Court find it necessary or appropriate to treat the Defendant’s motions as conceded.
Albeit brief, the Government’s initial opposition addresses the merits of the Defendant’s legal
arguments, emphasizing (correctly) that the Defendant’s arguments had previously been
addressed by the Court or lacked any legal foundation. The Government’s supplemental
opposition was filed one day late, but the Government promptly sought leave to late file the
pleading, which the Court granted. The Court hall dispose of the Defendant’s motions on the
merits.
The Defendant’s many pleadings boil down to two arguments: the Government failed to
satisfy its burden to provide a “full and complete statement” under subsection (b); and the
Government failed to meet its burden to provide a “full and complete statement” under
subsection (c). Neither argument has merit. Subsection (b) requires the Government to provide
“a full and complete statement of the facts and circumstances relied upon by the applicant, to
justify his belief that an order should be issued.” 18 U.S.C. § 2518(1)(b). The statute provides
that a full and complete statement under this subsection must include “the identity of the person,
if known, committing the offense and whose communications are to be intercepted.” Id.§ 2518(1)(b)(iv). In his First4 and Fourth Supplements, the Defendant argues that by no later
4
The Defendant submitted two separate documents labeled as a “Second Supplement.”
To prevent any confusion, the Court refers to the first of these documents, ECF No. [775], as the
4
than the March 11 application concerning TT2, the Government “had identified Edwards as a
participant in the criminal activity,” and thus was required to name the Defendant as a target of
the wiretap pursuant to United States v. Kahn, 415 U.S. 143 (1974). Def.’s Fourth Suppl. at 4.
The fact that the Government has probable cause to believe an individual is participating
in the criminal activity under investigation is a necessary, but not sufficient condition to require
naming the individual in a Title III wiretap application. Rather, subsection b requires the
Government to name an individual as a possible target of a wiretap only 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 (1977). In response to the Defendant’s
second pro se motion to suppress, the Court found that the Government did not have probable
cause to believe Edwards would have been intercepted over TT2 on or before the March 11
application. Edwards IV, 904 F. Supp. 2d at 11. The Defendant offers no evidence to the
contrary. Thus, the Government was not required under subsection (b) to disclose Edwards as a
possible target in the March 11 application regarding TT2.
Subsection (c) requires the Government to provide “a full and complete statement as to
whether or not other investigative procedures have been tried and failed or why they reasonably
appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(1)(c).
In reviewing whether an affidavit contains a full and complete statement of facts
in compliance with § 2518(1)(c), we assess whether the affidavit attests that
adequate investigative tactics were exhausted before the wiretap order was sought
or that such methods reasonably appeared unlikely to succeed or too dangerous.
As a general rule, proof that law enforcement officials either lied or made reckless
misstatements in affidavits to secure a warrant or order does not in and of itself
invalidate that warrant or order, or compel suppression of evidence obtained upon
Defendant’s “First Supplement.”
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its execution. But false statements that are material in causing the warrant to
issue will invalidate it.
United States v. Rivera, 527 F.3d 891, 898 (9th Cir. 2008). A misstatement or omission is
material only if it would “undermine the government’s ability to prove the need for the . . .
wiretap.” United States v. Becton, 601 F.3d 588, 597 (D.C. Cir. 2010) (quoting United States v.
Gonzalez, Inc., 412 F.3d 1102, 1111 (9th Cir. 2005)).
The Defendant argues that the Government failed to provide a “full and complete
statement” under subsection (c) by failing to include various information in the March 11
application regarding TT2, including, among other things, (1) pen register results from TT3; (2)
information received from a fourth confidential source; and (3) observations of Bowman and
Edwards together during physical surveillance of Bowman. The Court addressed a number of
these omissions in the initial motion to suppress filed by defense counsel, and the Court sees no
reason to revisit those rulings. Edwards I, 889 F. Supp. 2d at 8-17. The Court need not address
the Defendants’ remaining arguments on this point because the Defendant explicitly states no
fewer than four times that he is not challenging the Court’s previous finding that the March 11
application regarding TT2 satisfied the necessity finding. Def.’s Suppl. Mot. at 12 (“Edwards is
not arguing whether or not ‘necessity’ was established.”); id. at 18 (“The discussion presented
within this supplemental motion is not to establish a lack of ‘necessity,’ but rather to prove that
the Government violated [the] Title III ‘full and complete statement requirement.”); Def.’s Reply
at 3 (“I am NOT saying that the ‘enumerated omissions’ supported a lack of necessity.”)
(emphasis in original); Def.’s Second Suppl. at 5 (“Edwards is not seeking to show a lack of
necessity.”).
Ultimately, the Court’s determination that the necessity requirement was satisfied in this
case did not turn on the Government’s (purported) inability to identify Defendant Bowman’s
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suppliers. Instead, the Court emphasized that “[e]ven in combination,” the traditional
investigative techniques employed by in this case left the Government “unable to determine,
among other things, where in his apartment building Bowman stored the narcotics, the location
of other stash houses, or where assets and proceeds related to the conspiracy were held.”
Edwards I, 889 F. Supp. 2d at 13 (citations omitted). Even if the Government had identified
Edwards as a suspected supplier, the application still would have “adequately demonstrated the
failure of normal investigative techniques to reveal the full nature and scope of the conspiracy,”
thus satisfying the necessity requirement. Becton, 601 F.3d at 597.
At various points in his pleadings, the Defendant describes the alleged omissions as
“material,” but as the Defendant’s First Supplement clarifies, the Defendant believes the
omissions “are material to the prior application provision,” i.e., subsection (e). Def.’s First
Suppl. at 5; Def.’s Reply at 4 (“The exclusion of the ‘enumerated omissions[]’ was material to
§ 2518(e)(1).”). The Court understands the Defendant to mean that by omitting certain
information regarding the investigation of Bowman that would have referenced Defendant
Edwards, and then omitting reference to prior wiretap applications concerning Defendant
Edwards, the Government ran afoul of the requirement in subsection (e) that the Government
provide “a full and complete statement of the facts concerning all previous applications . . .
involving any of the same persons, facilities or places specified in the application.” 18 U.S.C.
§ 2518(1)(e) (emphasis added). The Defendant offers no legal authority for the proposition that
the Government must disclose prior applications regarding individuals who appear in wiretap
affidavits but are not targets of the wiretap under subsection (b). In fact, noting that the purpose
of an affidavit in support of a wiretap goes beyond simply identifying the targets several courts
have held the exact opposite:
7
An affidavit is submitted to justify an interception order by furnishing evidence of
the Government's probable cause to believe that the named targets of the
application are engaging in illegal gambling activities. In an effort to establish
probable cause to conduct surveillance of the named individuals, the affidavit
might discuss the activity of numerous people not named as targets of the
investigation. It does not follow, however, that anyone listed in the affidavit is
thereby deemed a target of the investigation subject to the dictates of s
2518(1)[(e)].
United States v. Sklaroff, 552 F.2d 1156, 1160 (5th Cir. 1977), abrogate on other grounds, Green
v. Miller, 483 U.S. 756 (1987); see also United States v. Lamantia, No. 93-523, 1996 WL
559950, at *16 (N.D. Ill. Sept. 30, 1996); United States v. Gambale, 610 F. Supp. 1515, 1536 (D.
Mass. 1985). Thus, even if the Government had disclosed investigative activities involving
Defendant Edwards, because the Government was not required to disclose the Defendant as a
target of the wiretap under subsection (b), it was under no obligation to disclose any prior
applications concerning the Defendant.
IV. CONCLUSION
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. The applications seeking orders authorizing wiretap
interceptions provided the “full and complete statements” required pursuant to 18 U.S.C.
§ 2518(1)(b) and (c). The Government did not have probable cause to believe Defendant
Edwards would have been intercepted over TT2, and therefore was not required to identify
Edwards under subsection (b). With respect to subsection (c), even if the Government had
identified Edwards as one of Bowman’s suppliers, the Court would still have found that a
wiretap was necessary to disclose the full scope of Defendant Bowman’s drug trafficking
operation. The Defendant does not suggest that any of the other alleged “omissions” were
material to the necessity finding, and thus are not grounds for suppression. Finally, even if the
8
Defendant was appeared in the affidavit in the context of a discussion of investigative techniques
used with respect to Defendant Bowman, the Government was not required to disclose prior
wiretap applications concerning Defendant Edwards because he was not a target of the
application at issue in this case. Accordingly, the Defendant’s [767] Motion for Reconsideration,
[768] Supplemental Motion for Reconsideration, and [797] Motion to Treat Motions to
Reconsider as Conceded are DENIED.
An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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