United States v. Williams ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v.
Criminal Nos. 11-129-1, 2, 11 (CKK)
GEZO GOEONG EDWARDS, et al.,
Defendants.
MEMORANDUM OPINION
(September 16, 2012)
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].1 As indicated on the record during the
September 7, 2012 Status Hearing, Defendants Bowman and Henry Williams join in Defendant
Edwards’ motion. Upon consideration of the pleadings,2 the relevant legal authorities, and the
record as a whole, Defendant Edwards’ motion to reconsider is DENIED.
I. BACKGROUND
The Court detailed the factual history relevant to Defendant Edwards’ motion at length in
1
For purposes of this Memorandum Opinion, the Court presumes familiarity with the
prior Memorandum Opinion.
2
See Def.’s Mot., ECF No. [390]; Gov’t’s Opp’n, ECF No. [399]; Def.’s Reply, ECF
No. [409]; Def.’s Am. Reply, ECF No. [419]; Gov’t’s Suppl. Opp’n, ECF No. [424].
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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.
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; [and]
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(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
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
Government, have failed to comply with Court-ordered deadlines regarding pretrial motions at
various points, and the Government has not articulated any prejudice from the timing of the
Defendant’s motion to reconsider. Accordingly, the Court shall address the merits of the
Defendant’s motion.
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
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applications submitted on January 13, February 11, and March 11 failed to meet the statutory
requirements found in Section 2518(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.
A. The Government Was Not Obligated To Disclose Defendant Edwards As A
Possible Target On TT2 Prior to April 8, 2011
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 (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. 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.
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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:
(a) in January 2011, the Government knew Bowman and Edwards were
associates;
(b) in early February 2011, the Government knew Bowman and Edwards
“communicated frequently,” and Bowman suddenly obtained narcotics;
(c) in late February 2011, the Government knew that Edwards, Bowman, and
Defendant Robert Richards “were associating for trafficking in narcotics”;
and
(d) on March 8-9, 2011, the Government knew that in 2007, a federal Judge
issued authorizations for wiretaps and closed-circuit television monitoring
concerning Defendant Edwards.
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.3 It
does not show that the Government expected Defendant Edwards’ conversations to be
intercepted over TT2.
Neither party directly addressed the level of certainty required before the Government
3
N.B. The Government disputes Defendant Edwards’ account of when the Government
learned of Defendant Edwards’ involvement with the purported conspiracy involving Defendant
Bowman. E.g., Gov’t’s Opp’n at 6 & n.3. The Court draws no conclusion as to what
information regarding Defendant Edwards the Government actually had in its possession at any
given time, but presumes without deciding for purposes of this motion that the Defendant’s
description is correct.
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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
[T]he technology available today allows law enforcement to use the target
telephone as a type of monitor from which it can listen to individuals speaking in
proximity to the target device. Considering that the Court has found that Pak
knew Edwards and Bowman were associates in January 2011, it follows that
associates purportedly engaged in drug trafficking would occasionally meet in
person. Thus, it is not far fetched to infer that Pak also knew that the Edwards
would be intercepted in background conversations near Bowman’s telephone.
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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.
B. The Government Was Not Obligated To Disclose Previous Applications
Concerning Defendant Edwards
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
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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 Defendant
Edwards as a possible target on TT2 in connection with the January, February, or March 2011
applications. Once the Government identified Edwards as a possible target on TT2 in the April
2011 application, it disclosed the 2007 applications as required by Section 2518(1)(e). 4/8/11
Aff. of T. Pak, ECF No. [247-7], ¶¶ 63-64. The Government’s applications for authorization to
intercept wireless communications over TT2 met the statutory requirements outlined in Section
2518(1)(e).
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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. 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.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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